Chile: Supreme Court rules on constitutional remedy to guarantee fundamental constitutional rights

On 6 January 2020, in a unanimous decision, the Supreme Court ruled in favour of a Constitutional Action known as “Recurso de Protección” [constitutional remedy to guarantee fundamental constitutional rights] filed against the Comptroller General of the Republic and the National Board of Day-Care Centres (JUNJI), following the dismissal of a JUNJI staff member hired as a replacement for a specified term.

Despite being pregnant at the time of her dismissal and having informed her employer about her condition a month prior, the woman was dismissed after her employment agreement expired on the grounds that the maternal immunity of replacement employees only covers the period of the incumbent’s absence. The Court declared that this reasoning is illegal under the rules on maternity protection and the rights recognised both in the Constitution and the International Covenant on Economic, Social and Cultural Rights.

Therefore, the removal of a pregnant replacement employee can only be obtained through the procedure provided by law, even if her employment agreement has already expired according to the terms established within the agreement.

For more information on these articles or any other issues involving labour and employment matters in Chile, please contact Ricardo Tisi (Partner) of Cariola Díez Pérez-Cotapos at rtisi@cariola.cl or visit www.cariola.cl