In a judgment, the Court answered in the affirmative.
In fact, under the Labour Code, an employer is prohibited from giving notice of termination of the employment relationship or, where applicable, convening a female employee to a pre-dismissal interview where she has been medically certified to be pregnant and during a period of 12 months following delivery.
Thus, provided that the employer is duly informed of the employee’s pregnancy by means of a medical certificate, any dismissal with notice of that pregnant employee, with or without exemption from work, and likewise any invitation to an interview preceding such dismissal, are null and void.
As a result of the nullity of the dismissal ab initio, the employment contract continues to exist, with the same rights and obligations attaching to the employer and the employee, both parties being automatically restored to the situation that prevailed before the improper dismissal by the employer.
The Court has thus made it clear that, in so far as a void dismissal is entirely inoperative, an improperly dismissed pregnant employee must continue to perform her work.
If the employer refuses to allow the employee to work, an improperly dismissed pregnant employee is then entitled to apply either to the president of the labour court to pronounce the nullity of the dismissal and to order her maintenance in post, or to bring legal proceedings to remedy the unfair termination of her employment contract.
In the case brought before it, the Court even held that there was serious misconduct on the part of the pregnant employee dismissed with notice, thus justifying her dismissal with immediate effect for unjustified absence during the period of notice.
In fact, the Court took into account the fact that the improperly dismissed pregnant employee had initially continued to work for 2 days, the employer not having opposed this despite sending the dismissal letter, and thereafter she did not present herself at her place of work, a situation which lasted several days. The dismissal being void, she should have continued to attend her place of work.