We were surprised to encounter resolution No. 2025-001049 of the Second Chamber of the Supreme Court of Justice, dated March 28, 2025, issued in a special proceeding for the protection and safeguarding of due process. In this case, a female employee, within the context of a disciplinary process, was subject to a reassignment as a precautionary measure. In her view, the measure lacked validity because, given her protected status, it should have been authorized by the National Directorate and General Labor Inspection.
Although the dispute arose within a public employment relationship, the judicial response is fully applicable to the private sector, particularly as it involves the interpretation of Articles 540 and 541 of the Labor Code, which apply to both types of employment.
The Second Chamber confirms, as did the first-instance judge, that “precautionary measures do not have a disciplinary nature, as these procedural actions (…) pursue preventive purposes arising from the need to maintain order in the workplace due to the conflict generated by the process, or to ensure investigations or the outcome of the disciplinary proceeding. Consequently, their adoption does not require the authorization provided for in Article 541 of the Labor Code.”
Up to this point, there is nothing new, although it is certainly worth recalling that once the administrative procedure to obtain authorization for dismissal before the National Directorate and General Labor Inspection has been initiated, precautionary measures affecting a pregnant or breastfeeding employee may only be authorized by that authority. In this regard, Article 94 of the Labor Code provides: “Exceptionally, the Directorate may order a provisional precautionary measure, including the suspension of the employee with pay, while the dismissal request is being resolved.”
Accordingly, prior to filing the dismissal request, authorization is not required; once the request has been submitted, authorization is required.
Where some novelty does arise, one that will later need to be qualified, is in the following phrase introduced in the judgment under comment: “In accordance with the aforementioned articles 540 and 541, in order to impose any disciplinary measure on female employees who are pregnant or breastfeeding, the respective authorization must be requested from the National Directorate of the General Labor Inspection.”
This criterion is striking because, from a plain reading, it would follow that any disciplinary sanction short of dismissal, whether warnings (including a broad range of forms such as verbal warnings, written warnings, reprimands, etc.) or suspensions without pay, would need to be authorized in advance by the Ministry before being applied. We would then assume that the comment refers to employees in maternity, since it is evident that, due to an error, it failed to specify that it was not a purely gender-based criterion when simply referring to “female employees,” but rather to employees “in maternity or breastfeeding.”
If that were the case, we would be facing an unjustified limitation, because if this were truly an interpretation of those two legal provisions, it would be difficult to argue that it would not also apply to other situations in which prior authorization from the National Directorate of the General Labor Inspection is required.
Even more importantly, it should be noted that the criterion set out by the Chamber does not respond to the classic reasons why case law becomes a source of law, as there is no regulatory gap and the existing rules are not unclear.
Indeed, article 540 of the Labor Code, the only one of the two that refers to “any other disciplinary measure”, does so in order to establish that protected employees may challenge such measures through summary proceedings; that is, it defines the applicable judicial procedure, but d
Article 541 of the Labor Code, on the other hand, which does establish the requirement for the employer to request authorization from the administrative authority, expressly refers to the only sanction or disciplinary measure that must be approved, namely dismissal: “The persons indicated in the preceding article shall be entitled to due process prior to dismissal…”
Accordingly, ruling out the need to interpret the legal rule, and bearing in mind that the power to amend legal provisions clearly lies with the legislative branch, the only logical conclusion is that the wording used in the judgment under comment constitutes an error on a matter that, moreover, was not the main subject of analysis in the judicial decision and therefore lacked legal relevance.
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