Informe definitivo - Informe núm. 241, Noviembre 1985

1. 216. The complaint is made in a communication from the National Federation of Electrical and Postal Communications Employees dated 16 May 1984. The Government replied by a communication dated 24 June 1985.
2. 217. Costa Rica has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No.087) and the Right to Organise and Collective Bargaining Convention, 1949 (No.098).

A.Allegations of the complainant

1. 218. The complainant alleges in its communication of 16 May 1984 that, in violation of the collective agreement, Mr. Guido Núñez Román, General Secretary of the Industrial Union of Electrical and Telecommunications Workers, was dismissed in May 1981 for having denounced cases of discrimination in the National Power and Light Company and corruption in certain quarters in the use of that company's property. The complainant states that the First Labour Court ruled in Mr. Núñez Román's favour, observing that the collective agreement had been violated by failure to follow the prescribed procedure. The Company appealed to the superior Labour Court which, in 1984, delivered judgement on the same lines as the Court of First Instance. In April 1984 the Company filed an application for cassation.
2. 219. The complainant further alleges that the collective agreement in force is repeatedly violated in the National Power and Light Company, specifically in the following instances:
   • a) wage adjustment of 20 per cent for certain workers (section 11);
   • b) seniority adjustment of 7.5 per cent in accordance with the collective agreement (section 69);
   • c) appointment of staff at foreman level without holding a competition (section 88);
   • d) refusal to give the Savings and Loan Fund to the workers, leaving it in the Company's name (section 89);
   • e) refusal to grant other rights established for all workers in the collective agreement (sections 61, 54, 25, 26 and others).
3. 220. Lastly the complainant makes a series of allegations which go back many years or which do not refer to violations of freedom of association.

B.The Government's reply

1. 221. The Government states in its communication of 24 June 1985 that, in the case of the dismissal of Guido Núñez Román, the procedure of dismissal without employer's liability was applied to him for having insulted, libelled and defamed the management and high officials of the undertaking in various documents which were signed or authorised by Guido Núñez and which were circulated not only within the Company but also among the public. Although the case was, relatively speaking, won by Guido Núñez at first instance, the Court stated:"There is no claim to lost wages under section 82 of the Labour Code because, although the offence with which the plaintiff was charged was not sufficiently serious to warrant dismissal, the fact is that, in the opinion of the undersigned, there was always a disrespect for the employer's representatives ...". Later in the same judgement, the Court explained that the plaintiff had uttered his expressions with "animus defendendi" and not with "animus injuriandi", and on that ground it declared the dismissal null and void. Both parties appealed against the judgement delivered at first instance inasmuch as the plaintiff, among other petitions, asked for reinstatement, which had been refused at first instance; then the Superior Labour Court declared: "And there is no doubt that, in view of the foregoing, the conclusion reached is that the grounds for dismissal were not met because the "intention to insult" was lacking, since the expression was framed in general terms, without specifying persons ...". For these reasons the Court considered that, although the offence had been committed, dismissal was not the right penalty in view of the circumstances surrounding the case.
2. 222. The Government adds that, on 16 April 1984, Guido Núñez and the Company appealed against the judgement of the Superior Labour Court. The Second Chamber of the Supreme Court of Justice concluded on 3 October 1984 that "in view of the phrases which occur repeatedly in the dossier - and which therefore need not be repeated - if we take into account this background, the plaintiff's position in defence of the workers and what he said in this letter in, perhaps, rather rough phrases, the truth is that he did not address them to a particular person or persons but in general terms to those running the Company. In these circumstances, there were insufficient grounds for punishing the plaintiff with dismissal rather than a disciplinary penalty of another magnitude, because the truth is that he did not use those phrases in his personal capacity ... . Therefore he must be excused payment of the costs because, although he committed the offence, it was not of such gravity as to warrant his removal from his post, in this case owing to the circumstances surrounding the events". Guido Núñez was again refused reinstatement by this Court, so that the only thing he was granted by the aforementioned courts at the conclusion of the proceedings was the award of costs.
3. 223. Lastly, with regard to the alleged violations of certain provisions of the collective agreement in force in the National Power and Light Company, the Government states that the instances referred to by the complainant are being discussed and clarified before the courts.

C.Conclusions of the Committee

1. 224. With regard to the alleged dismissal of Mr. Guido Núñez Román, the trade union leader, in May 1981 for having denounced cases of discrimination and corruption in the National Power and Light Company, the Committee notes that that Company applied to him the procedure of dismissal without employer's liability for having insulted, libelled and defamed the management and high officials of the undertaking.
2. 225. The Committee observes that, on 3 October 1984, the Second Chamber of the Supreme Court of Justice concluded at last instance that Mr. Guido Núñez Román's conduct constituted "insufficient grounds for punishing the plaintiff with dismissal rather than a disciplinary penalty of another magnitude, because the truth is that he did not use those phrases in his personal capacity ..."; later, furthermore, the Supreme Court states that the offence was not of such gravity as to warrant his removal from his post. The Committee further observes that, although the aforementioned judicial decision recognised Mr. Núñez Román's right to payment of his costs, it denied him reinstatement in his employment.
3. 226. In these circumstances, the Committee can only conclude that the dismissal of Mr. Guido Núñez Román, the trade union leader, was motivated by his trade union activities, and constituted anti-trade union discrimination contrary to Convention No. 98. The Committee consequently requests the Government to take steps with a view to the reinstatement of this trade union leader in his employment.
4. 227. More generally the Committee wishes to point out that section 82 of the Labour Code of Costa Rica provides in its second subsection that:"If a dispute arises subsequent to the dismissal and due proof of the reason is not forthcoming, the employee shall be entitled to payment of the wages due in lieu of notice and to any leaving grant which may be due to him and, by way of damages, to the wages which he would have earned from the date of the termination of the contract to the date on which a final judgment is given against the employer". In this connection, the Committee draws the Government's attention to the principle that it does not appear that sufficient protection against acts of anti-union discrimination - as set out in Convention No. 98 - is accorded by legislation which, in practice, enables employers, on condition that they pay the compensation prescribed by law for cases of unjustified dismissal, to get rid of any worker when the true reason for the dismissal is his trade union membership or activity. This in fact means that an employer, by paying compensation, can dismiss any member of his staff, for trade union or other activities, the public authorities being powerless to prevent him from doing so. Protection is particularly desirable in the case of trade union officials who, in order to be able to carry out their duties in full independence, must have the guarantee that they will not be prejudiced on account of the mandate which they hold from their trade unions. This guarantee is also necessary to secure respect for the principle that workers' organisations have the right to elect their representatives in full freedom (see, for example, 211th Report, Case No. 1053 (Dominican Republic), para. 163). Furthermore the Committee observes that the Committee of Experts on the Application of Conventions and Recommendations has been emphasising to the Government for some years the importance of adopting specific provisions to establish remedies and sanctions for acts of anti-union discrimination. The Committee requests the Government to take steps in that direction.
5. 228. Lastly, with regard to the allegation concerning violations of certain provisions of the collective agreement in force in the Power and Light Company, the Committee wishes to recall that the relevant principle is that disputes arising over the interpretation or application of the provisions of collective agreements should be settled by bodies independent of the parties (see, for example, 236th Report, Case No. 1206 (Peru), para. 509). In this connection the Committee observes that the alleged violations are being clarified before the courts.