Informe definitivo - Informe núm. 370, Octubre 2013

1. 343. The complaint is contained in communications dated 15 August and 16 October 2012 presented by the Single Confederation of Workers (CUT).
2. 344. The Government sent its observations in a communication dated 14 June 2013.
3. 345. Colombia has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), the Labour Relations (Public Service) Convention, 1978 (No. 151), and the Collective Bargaining Convention, 1981 (No. 154).

A. The complainant’s allegations

1. 346. The complainant alleges that, on 19 February 2001, Mr Antonio Ricaurte Fernández Albán, a Bancolombia worker since 1987 (“the worker”) and member of the SINTRABANCOL union since that year, was the subject of a dismissal which was in violation of the collective agreement in force and which constituted an act of anti-union discrimination. The dismissal resulted from an incident which occurred on 5 December 2000 at the cash desk of a branch of the bank, when an individual who had taken possession of the identity documents and savings book of a bank client and had forged the client’s withdrawal authorization managed to withdraw a substantial sum of money via the worker. Following a complaint from the account holder, the bank commenced disciplinary proceedings against the worker on 26 January 2001, stating that he could choose to be accompanied by two union officials if he deemed it appropriate. On 7 February 2001, the worker submitted a written response, explaining that he had followed the applicable procedure under the rules for the withdrawal of cash by a third party. On 19 February 2001, the worker was notified in writing of his dismissal; he lodged an appeal against that decision in accordance with the terms of the collective agreement governing dismissals on disciplinary grounds. The complainant indicates that the bank responded by stating that the dismissal was an autonomous decision by the enterprise and not a disciplinary measure, and that the procedure in the collective agreement therefore did not apply. The complainant alleges that the disciplinary proceedings governed by the collective agreement, which began on 26 January 2001 and for which the worker was granted the opportunity to be assisted by union representatives throughout, were never concluded and that the worker’s dismissal therefore violated the provisions of the collective agreement, preventing the trade union from fulfilling its role of defending workers, as agreed with the employer. The complainant considers that, in view of the foregoing, the worker’s dismissal constitutes anti-union discrimination.
2. 347. The complainant adds that the Third Labour Court of the Popayán Circuit, the Labour Chamber of the High Court of Popayán and the Labour Chamber of the Supreme Court of Justice all rejected the worker’s claims, and in turn violated ILO Convention Nos 87 and 98 by failing to take into account the provisions of the collective agreement in force.

B. The Government’s reply

1. 348. By a communication dated 14 June 2013, the Government transmits Bancolombia’s response to the complainant’s allegations. The enterprise indicates that the worker was dismissed for having violated the bank’s procedures concerning cash withdrawals, that the worker had an opportunity to present his defence and that he was reminded that he could be accompanied by two union representatives, thereby complying with the disciplinary procedure set out in the enterprise’s collective agreement. It states that both the courts of first and second instance and the Labour Chamber of the Supreme Court of Justice rejected the worker’s claims and found his dismissal to be justified. The enterprise adds that the worker’s applications for protection of his constitutional rights also failed, and that both the Criminal Cassation and the Civil Cassation Chambers of the Supreme Court of Justice and the Jurisdictional Disciplinary Chamber of the Supreme Council of the Judiciary rejected the application. The enterprise concludes that the dismissal to which the present complaint pertains is founded in objective facts wholly unrelated to the worker’s union membership and hence in no way constitutes a case of anti-union discrimination.
2. 349. In the same communication, the Government of Colombia endorses the information presented by the enterprise. It states that the alleged facts do not constitute acts of anti-union discrimination and that, as confirmed by the various judicial rulings, the dismissal complied with the standards in law and in the collective agreement.

C. The Committee’s conclusions

1. 350. The Committee observes that the present case concerns the dismissal of a Bancolombia worker who is a member of the SINTRABANCOL trade union. The complainant alleges that, after initiating disciplinary proceedings against the worker as a result of alleged misconduct, the enterprise dismissed him directly, without complying with all of the stages in the collective agreement, which, in particular, provided that the worker has an opportunity to appeal and to receive assistance from union representatives throughout the proceedings. Consequently, the complainant considers that the dismissal violated the collective agreement in force and that it constitutes anti-union discrimination, and that the courts which heard the case committed the same violations by failing to take account of the collective agreement in their respective rulings.
2. 351. The Committee takes note of the coincident observations of the Government and the enterprise, in which they state that:
   • – the dismissal results from the worker’s violation of the procedures governing cash withdrawals and is unrelated to his union membership;
   • – the enterprise complied with the applicable provisions of the law and of the collective agreement, thereby safeguarding the worker’s right to defend himself; and
   • – the courts at all stages of the proceedings found that the enterprise had complied fully with the provisions in law and the collective agreement.
3. 352. The Committee observes that at issue in this case is, first, whether the dismissal was anti-union in nature and, second, whether the enterprise and the courts hearing the case violated the collective agreement in force. Concerning the grounds for the dismissal, the Committee recalls that it is not called upon to pronounce upon the question of the breaking of a contract of employment by dismissal except in cases in which the provisions on dismissal imply anti-union discrimination [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, para. 779]. The Committee observes that there is no evidence of anti-union discrimination in the present complaint and that, similarly, the various judicial proceedings initiated by the worker did not argue that there had been anti-union discrimination. Accordingly, the Committee will not pursue its examination of this allegation.
4. 353. With regard to the alleged violation of the provisions of the collective agreement pertaining to disciplinary proceedings, the Committee observes that the various judicial rulings issued on the matter rejected the worker’s claims and found in particular that the provisions of the collective agreement governing disciplinary proceedings do not cover cases of dismissal and that they are therefore inapplicable in the present case. Under these circumstances, the Committee considers that this case does not call for further examination.