Informe definitivo - Informe núm. 142, 1974

1. 24. The Committee examined this case previously at its session in February-March 1972, at which time it submitted to the Governing Body an interim report which is to be found in paragraphs 49 to 67 of the Committee's 130th Report, approved by the Governing Body at its 186th Session (May-June 1972).
2. 25. In paragraph 67 of that report the Committee recommended the Governing Body to request the Government to supply copies of the judgements of the courts in the cases mentioned in the complaint, together with the grounds adduced therefor.
3. 26. The Government furnished additional observations and copies of the judgements requested in a communication dated 29 October 1973.
4. 27. Madagascar has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), but not the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. A. The complainants' allegations

1. 28. It should be remembered that the allegations concerned the dismissal of certain officials and members of the Federation of Trade Union Workers of Madagascar (FISEMA). The complainants referred to the cases of the following persons: Messrs. Arthur Regaga and Benoît Rakotoarison, candidates for election as staff representatives on the FISEMA list, and Mrs. Jeannette Ravaliarisoa, a member of FISEMA and an AKFM party candidate for election as a general counsellor - all three of whom were dismissed by the Ground-nut Cooperatives' Union (UCOPRA); Mr. André Randriantseheno, a FISEMA activist appointed as a representative of the AKFM party at a polling station during the general elections - dismissed from the Malagasy Coastal Shipping Company at Majunga; Mr. François Rakotoniaina, a candidate for election as a staff representative on the FISEMA list - dismissed from the Avaradrova Teachers' Training College; Messrs. J. Rasamison, Randriamanantenasoa and A. Rakotondrainibe, executive members of the FISEMA and AKFM party candidates at various elections dismissed by the Tamatave Port Operation Authority (National Railway System). In view of the complainants, the action taken against these persons constituted discrimination against their trade union and was contrary to Convention No. 87.
2. 29. In its comments upon these allegations, the Government declared that the trade unions had a tendency to confuse political activities with trade union activities, letting their members understand that they had nothing to lose by involving themselves in political activities at their workplace. The Government added that these dismissals had not been due to the opinions held by the workers concerned, or to their trade union activities, or to their membership or non-membership of a particular trade union, but to breaches of rules of discipline laid down in the works rules of the undertaking or establishment. In nearly every case either previous notice of dismissal or compensation in lieu thereof bad been given. The Government pointed out that in such cases the worker was entitled to refer the matter either to a labour inspector with a view to conciliation or to a labour court. In the present instance, since no conciliation had been possible before the labour inspector, all the cases had been brought before the courts.
3. 30. In its communication of 29 October 1973, to which it appends copies of the judgements as requested, the Government states that the FISEMA informed it by a letter dated 5 October 1973 that its complaint had been filed against the previous Government and that it did not maintain its complaint against the present Government. However, it requested the reinstatement of the persons dismissed. The Government states that this request is under consideration.
4. 31. Called upon to rule on the cases of Messrs. Regaga and Rakotoarison and Mrs. Ravaliarisoa, the Madagascar Court of Appeal observed, in a judgement handed down on 16 March 1972, that the plaintiffs had engaged, during working hours and at their workplace, in trade union and political propaganda. The Court was of the opinion that such conduct, which could not fail to have a disturbing effect upon work, productivity and discipline, was prohibited by article 13 of the works rules of the Ground-nut Co-operatives' Onion. This article states that members of the staff are prohibited from engaging in any activity likely to impair order, discipline, productivity or the safety of the undertaking, including, in particular, political or religious discussions and, in general, any conversation unconnected with business. The court also found that Messrs. Regaga and Rakotoarison were not entitled to claim the protection afforded to candidates for office as staff representatives, since their dismissal took place after the expiry of the three-month period prescribed for such protection. The Court accordingly confirmed the judgement pronounced by the Majunga Labour Court, which had rejected the plaintiffs' action for damages.
5. 32. Considering that there was no possibility of resolving his difference with his employers, the Court of Appeal likewise rejected Mr. Rakotoniaina's claim for reinstatement in his post.
6. 33. The Madagascar Supreme Court delivered judgement in the cases relating to the dismissal of employees by the National Railway System and the Tamatave Port Authority. Two of the persons concerned, Messrs. Rasamison and Rakotondrainibe, were reinstated, while the claim of the third, Mr. Randriamanantenasoa, was rejected. The Disciplinary Board had in fact reproached the latter not only with adopting a vindictive attitude but also with failure to perform the duties incumbent upon an employee of his rank and lack of conscientiousness in his work.
7. 34. The Government has not forwarded a copy of the judgement relating to Mr. André Randriantseheno, merely stating that he was dismissed because of his unauthorised absence from work to engage in electoral propaganda.

B. B. The Committee's conclusions

1. 35. The Committee takes note of the Government's statement concerning the withdrawal of the complaint. The Committee has not received any request to that effect from the complainants themselves. In any case, since the Government has supplied the additional information requested by the Committee, the Committee feels bound to examine the substance of the case.
2. 36. In cases where it has been alleged that workers were dismissed on account of their trade union activity, the Committee has drawn attention to the principle that workers - particularly trade union officials - should enjoy adequate protection against all acts of anti-union discrimination in respect of their employment, such as dismissal, demotion, transfer or other prejudicial measures; it has also expressed the view that this principle does not necessarily imply that the fact that a person holds a trade union office confers on him immunity against dismissal irrespective of the circumstances. Article 1(2)(b) of Convention No. 98, for instance, provides that workers must be protected against acts of anti-union discrimination resulting from their participation in union activities outside working hours or, with the consent of the employer, within working hours.
3. 37. The Committee has also stressed the importance of providing expeditious, inexpensive and wholly impartial means of redressing grievances caused by acts of anti-union discrimination.
4. 38. In the present case, the Committee notes that the persons concerned have appealed to the competent courts, which have pronounced judgement on their claims. The Committee notes that Messrs. Regaga and Rakotoarison and Mrs. Ravaliarisoa were dismissed for engaging in political and trade union propaganda during working hours, in breach of the works rules, and that Mr. Randriamanantenasoa was dismissed for lack of conscientiousness in his work. Messrs. Rasamison and Rakotondrainibe, on the other hand, have been reinstated in their employment.
5. 39. The Committee also notes the Government's expressed intention to examine the request for the re-hiring of the persons concerned in similar posts.