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Argentina: Additional severance compensation for dismissal of pregnant employees

The Labor Courts of the city of Buenos Aires, in the case “V. A. R. D. c/ Faurecia Argentina SA s/ despido’’ ruled that the employer must pay additional severance compensation (equal to 13 monthly salaries) provided by labor laws to an employee that was pregnant at the time of her dismissal, even though the employee had not served formal notice of her pregnancy to her employer prior to her dismissal, as required by labor law.

Section 178 of the Labor Contract Law 20,744 provides that in case of dismissal of an employee effective 7.5 months before or after giving birth -if she has formally served notice of her pregnancy and delivered the correspondent medical certificate to employer-, it is presumed that she was dismissed due to her pregnancy and therefore, in case the employer fails to prove the existence of other cause of dismissal, employer must pay the employee additional severance compensation equal to one year’s salary (13 monthly salaries) on top of the regular severance compensation provided to all employees for unfair dismissal.

In this particular case, the Labor Court awarded this additional compensation to the employee, based on the following facts and arguments.

First, the Labor Court considered that the employee was 6 months pregnant at the time of her dismissal. Secondly, witnesses testified that she had physical signs of being pregnant at that time. Lastly, the Court considered that the employer never proved the alleged cause of the dismissal, a “reorganization” of the company.

These facts and arguments led the Labor Court to conclude that even though the employee had not formally served notice of her pregnancy to her employer (and delivered the correspondent medical certificate) prior to her dismissal, the employer had knowledge of her pregnancy and dismissed her due to that circumstance.

This case law shows that Labor Courts in Argentina understand that the legal requirements to award this additional severance compensation are fulfilled if the employee can prove that the employer had informal knowledge of the employee´s pregnancy at the time of the dismissal, in which case is the employer the one that has to prove that there were other reasons for the dismissal.