Demande directe (CEACR) - adoptée 1998, publiée 87ème session CIT (1999)

Article 6 of the Convention. In response to the Committee's previous comments, the Government indicates that the provisions under section 177(1) of the Labour Code ensures adequate employment protection for women who are pregnant or absent on maternity leave to the extent that, under this section, women who are pregnant or absent on maternity leave may not be given notice of dismissal or dismissed under previous notice, irrespective of grounds for such termination. However, such dismissal may be possible, upon agreement with the trade union organization represented in the enterprise, if the woman employee has given grounds for such termination. The Government emphasizes that this dismissal procedure may only be applied in certain cases, namely: (a) if the woman employee commits a serious violation of her basic obligations as a worker; (b) if the woman employee commits an offence during the term of her contract which prevents her from continuing in her employment and as far as it is manifest, or established by an enforceable decision, that she had committed the offence; (c) if the woman employee ceases for reasons within her control to fulfil the necessary conditions to carry out the duties required by the position that she occupies. The Government adds that the legislator has also provided for protective mechanisms to prevent the abuse of this procedure.

The Committee notes this information. It also notes that the cases of dismissal of an employee who is pregnant or absent on maternity leave, authorized under section 177 of the Labour Code, are those laid down in section 52 of the Labour Code as justifying dismissal without notice in case of fault.

In this respect, the Committee recalls that Article 6 of the Convention prohibits notice of dismissal being given to a woman absent from work on maternity leave or at such time that the notice would expire during such absence, without referring to the possibility of authorizing the dismissal under certain particular or exceptional circumstances, for a reason which the national legislation considers as justifiable. The Committee nevertheless would like to emphasize that protection provided under this provision of the Convention concerns maternity leave only and not the complete duration of the pregnancy, as provided for under section 177 of the Labour Code. Article 6 of the Convention, therefore, does not prohibit the employer from immediately terminating (without due notice) the contract of a woman employee who is pregnant when she has not yet taken maternity leave and when there are justifiable reasons to do so. Moreover, if circumstances substantiating the termination of the contract for justifiable reasons are invoked during the employee's maternity leave, the notice of dismissal will be suspended for the duration of the protection period provided for under Article 6 of the Convention. The Committee hopes therefore that the Government will re-examine the question in light of the above comments and requests the Government to indicate whether, and under which provision, an employee who has been dismissed under the application of section 177 of the Labour Code during her maternity leave would continue nevertheless to receive maternity benefits provided for by national legislation, in conformity with the Convention.