Attorney: dismissal during pregnancy always unlawful

POSTED: 05/15/12 11:50 AM

St. Maarten – Civil law attorney mr. Wim van Sambeek says that he is “shocked” by the lack of legal know how at the Windward Islands Teachers Union Witu. The reaction follows after today published a story on Saturday about a teacher who was fired by the school board of an unidentified faith-based school because she had become pregnant while she was not married.

Van Sambeek said that the teacher’s dismissal is void and that she is entitled to claim the continued payment of her salary. According to Witu-president Claire Elshot, the teacher accepted her dismissal per January 1, agreeing that she had violated her contract that put an (unlawful) ban on pregnancy out of wedlock.

Article 1615 of the civil code prohibits employers from firing employees during pregnancy or maternity leave. During the pregnancy the employee is entitled to her full salary during at least four weeks before and six weeks after the probable date of giving birth.

The teacher signed the contract with the school, apparently aware of the article about pregnancy out of wedlock. She also agreed with the dismissal. “Even in that case the dismissal is void,” Van Sambeek said. “Such an article is simply not valid. Labor legislation is designed to protect the weaker party and it sets limits to the contract-freedom.”

Based on this attitude, the attorney says, an employee could agree with an employer to work for less than the minimum wage. “There are enough people who would sign for it if they really needed a job. Fortunately the weak employee is also protected in such cases. The deviation from the law is not valid – at least, it is possible to nullify it.”

In this context it is relevant that the state regulation of St. Maarten contains an article buy valium thailand that deals with equality. Article 16 states that “Everyone in Sint Maarten shall be treated equally in equivalent circumstances. Discrimination on grounds of religion, belief, political persuasion, race, color of skin, sex, language, national or social origins, membership of a national minority, wealth, birth or and any other ground whatsoever is prohibited.”

It is therefore unconstitutional to discriminate between teachers who are getting pregnant while they are married and teachers who are getting pregnant while they are not married.

Case law shows that this single circumstance is not sufficient ground for dismissal. Last year, a Reformed primary school in the Netherlands fired a male teacher because he had entered into a relationship with a man after divorcing his wife. He also started living with his new partner.

This particular teacher did not take his dismissal without a fight and he eventually prevailed in court. The school had not investigated whether the choices the teacher had made, made it impossible for him to still support the school’s fundamental principles.

The same argument is valid for the teacher in St. Maarten: it is unclear whether the school spoke with the teacher to find out whether she still stood behind the school’s religious principles even though she had obviously violated those principles herself.

The Netherlands has, next to the ban on discrimination in the constitution, the Law Equal Treatment that gives more detail about the protection of citizens against discrimination. While St. Maarten does not have such legislation, the labor legislation and the state regulation combined make clear that school boards are not free to do whatever they like.

According to attorney Van Sambeek employees who find themselves in similar situations in the future, ought to be aware that they are protected under the law.

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