CHILE Law and Practice Contributed by: Constanza Contreras, Gabriela Muñoz and Juan Francisco Reyes, SCR Abogados
If the court determines that a fundamental right has been violated, it may: • impose a fine on the employer; • order the employer to cease the unlawful conduct; and • require corrective or remedial measures to mitigate the harm caused. In addition to standard compensation for unfair dis - missal, the court may award supplemental compensa - tion ranging from six to 11 months’ salary, depending on the severity of the violation. Additionally, the rul - ing will be registered at the Labour Bureau and the employer may be barred from contracting with the state administration for a period of up to two years. In cases involving serious discrimination or anti-union practices, the employee may elect between receiving compensation and being reinstated to their previous position. Reinstatement is also available upon request in cases involving: • dismissals of employees protected by statutory dismissal protection ( fuero laboral ); or • dismissal of union members resulting from unfair anti-union conduct by the employer. 8.2 Anti-Discrimination The Chilean Constitution prohibits discrimination on any grounds other than an individual’s personal merit and suitability for a given role. It also enshrines the right to respect for privacy and personal honour. The Labour Code declares unlawful any exclusionary or preferential treatment in employment that has the purpose or effect of impairing or nullifying equality of opportunity or treatment. This includes discrimination based on, inter alia: • race; • skin colour; • sex; • maternity; • breastfeeding or nursing status; • age; • marital status; • union membership or activity;
• religion; • political opinion; • nationality; • national origin; • socio-economic status; • language; • beliefs; • participation in union organisations; • sexual orientation; • gender identity; • affiliation; • physical appearance; • illness or disability (including especially cancer); or • social origin. Job advertisements issued by employers – whether directly or through third parties – are deemed discrimi - natory when they establish any of the above charac - teristics as conditions or requirements for applying. The Labour Code provides a judicial remedy ena - bling employees to bring legal action against their employer where the employee’s fundamental rights are infringed, whether during the course of employ - ment or in the context of termination. In addition, the Anti-Discrimination Act defines arbi - trary discrimination as any unjustified distinction, exclusion or restriction – whether imposed by public authorities or private individuals – that results in depri - vation, disturbance or threat to the legitimate exercise of fundamental rights guaranteed by the Constitution or international human rights treaties ratified and in force in Chile. This definition is particularly applicable to actions based on: • race or ethnicity; • nationality; • socio-economic status; • language; • ideology or political opinion; • religion or belief; • union membership or lack thereof; • sex, maternity or breastfeeding status; • sexual orientation; • gender identity or expression; • marital status, age, affiliation, personal appear - ance, illness or disability.
123 CHAMBERS.COM
Powered by FlippingBook