Informe definitivo - Informe núm. 376, Octubre 2015

1. 321. The complaint is contained in a communication of 30 May 2014 presented by the Union of Cali Municipal Enterprises Workers (SINTRAEMCALI).
2. 322. The Government sent its observations in a communication dated 5 December 2014.
3. 323. 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 organization’s allegations

1. 324. In a communication of 30 May 2014, the complainant organization alleges that two of its members, Mr Emir Mezu and Mr Manuel Cortez, were illegally dismissed by EMCALI (hereafter “the company”) during a period of tense relations between the trade union and the company. In this connection, the organization states that: (i) in March 2009, SINTRAEMCALI denounced the company’s privatization policy, while seeking the reinstatement of six union leaders and 45 union activists who had been illegally dismissed in 2004 (Committee on Freedom of Association Case No. 2356); (ii) with a view to weakening SINTRAEMCALI, the company decided to promote the establishment of parallel trade unions that supported its privatization policy, and discredited SINTRAEMCALI; (iii) on 4 March 2009, when SINTRAEMCALI was holding a meeting, Mr Marlon Ferley Torres began to distribute a circular opposing the organization; (iv) Mr Emir Mezu and Mr Manuel Cortez, exercising their right to freedom of association, demanded that Mr Ferley Torres explain the content of his circular to the meeting’s participants; (v) having initially refused, Mr Ferley Torres decided to attend the meeting, following a telephone conversation; (vi) subsequently, Mr Ferley Torres presented a disciplinary complaint and brought criminal charges against Mr Emir Mezu and Mr Manuel Cortez, alleging that they had used force to compel him to attend the meeting; and (vii) although Mr Emir Mezu and Mr Manuel Cortez were absolved of the criminal charges, the company decided to dismiss them, and did not follow the appropriate disciplinary procedure.
2. 325. The complainant organization adds that it was not definitively proven that the two workers committed the acts of which they were accused; that the company did not respect the workers’ right to defence in applying Decree No. 2127 of 1945 instead of Act No. 734 of 2002 (Single Disciplinary Code), which provides for better guarantees for workers in disciplinary matters; and that, in the context of the company’s anti-union assault on SINTRAEMCALI, the dismissal of the two workers constitutes an anti-union act. The complainant organization requests the Committee to recommend that the Government reinstate the two workers, and that in future the Single Disciplinary Code be applied in cases of public sector disciplinary dismissals.
3. 326. In the same communication the organization also refers to the dismissal, on 4 June 2010, of Mr Gilberto Arredondo Castaño, a union member who was employed by EMCALI, whom the organization alleges was another victim of the company’s anti-union policy. The organization attaches a timeline of the events and legal proceedings related to this dismissal.

B. The Government’s reply

1. 327. In a communication dated 5 December 2014, the Government transmits EMCALI’s observations. The company firstly denies that it is supporting the creation of parallel trade unions to weaken SINTRAEMCALI, and states that freedom of association means that workers’ organizations have the full rights to self-form and to self-regulate, and that this applies to the 11 EMCALI trade unions that currently coexist. Regarding the dismissals of Mr Emir Mezu and Mr Manuel Cortez, the company states that: (i) on 5 March 2009, Mr Ferley Torres presented an internal complaint against Mr Emir Mezu, Mr Manuel Cortez and Mr Edwin Castañeda for having subjected him to physical violence; (ii) disciplinary proceedings against these three workers were instituted, with respect for their right to defence and following due administrative process; (iii) as part of this process, on 9 March 2009, an interview was conducted with the workers in the presence of a lawyer for SINTRAEMCALI; (iv) the administrative process resulted in the termination of Mr Emir Mezu’s and Mr Manuel Cortez’s employment contracts; (v) in both first and second instance rulings, the labour courts upheld the legality of the dismissals of the two workers; and (vi) the sentence handed down at the second instance is now the subject of a special judicial review, with a Supreme Court of Justice decision on its validity pending.
2. 328. Regarding the allegation according to which EMCALI erroneously applied Decree No. 2127 of 1945 instead of Act No. 734 of 2002, the company states that Act No. 734 of 2002 did not abrogate Decree No. 2127, which remains the legal instrument governing the reasons for termination of public sector employees’ employment contracts when there exists a just cause – as the first and second instance labour courts have confirmed there to be in this case.
3. 329. With regard to the dismissal of Mr Gilberto Arredondo Castaño, the company indicates that the due process was followed, that the worker’s right to defence was respected, that first and second instance rulings confirmed the dismissal’s legality, and that the outcome of a judicial review by the Labour Chamber of the Supreme Court of Justice is currently pending.
4. 330. Furthermore, the Government transmits its own observations, stating that: (i) although between 2012 and 2014, 16 labour-related administrative investigations were pursued as a result of complaints lodged by SINTRAEMCALI against the company (resulting in the imposition of four sanctions), the particular case of Mr Emir Mezu and Mr Manuel Cortez has not given rise to labour-related administrative complaints; and that (ii) the legality of the two workers’ dismissals has been upheld by first and second instance decisions and a final ruling by the Supreme Court of Justice is pending.
5. 331. The Government adds that the fact that the workers were dismissed as a result of their disrespectful conduct has been proven, but that the trade union has not furnished any proof to support its allegations of anti-union behaviour.

C. The Committee’s conclusions

1. 332. The Committee observes that the present case primarily concerns the dismissals of two members of SINTRAEMCALI, Mr Mezu and Mr Cortez, pursuant to an altercation with another EMCALI employee who was apparently opposed to the views of the aforementioned union. The Committee takes note of the complainant organization’s allegations that the dismissals constitute anti-union acts and that, in applying Decree No. 2127 of 1945 instead of Act No. 734 of 2002, the company did not respect the workers’ right to defence – for which reasons it requests that the Committee recommend that the workers be reinstated and that, in future, Act No. 734 of 2002 be used in case of public sector dismissal cases, as Decree No. 2127 should be abrogated.
2. 333. The Committee further notes that the complainant organization also refers to the dismissal of a third SINTRAEMCALI member, Mr Arredondo Castaño, under circumstances different from those surrounding the dismissals of Mr Mezu and Mr Cortez. Although it has attached a timeline detailing the events and legal proceedings relating to this dismissal, the Committee observes that the complainant organization has not brought forward any evidence as to how Mr Arredondo Castaño’s dismissal runs counter to the principles of freedom of association and collective bargaining. In these circumstances, the Committee will not pursue the examination of this allegation.
3. 334. As regards the possibility that the dismissals of Mr Mezu and Mr Cortez constitute anti-union acts, the Committee notes the complainant organization’s allegations: that it was not proven that the workers committed the violent acts of which they were accused and that, accordingly, they were cleared of the criminal charges against them; and that the company’s desire to weaken SINTRAEMCALI was the real reason for the dismissals. On the other hand, the Committee notes that the company and the Government affirm that: (i) the court of first instance considered that it had been demonstrated that Mr Mezu and Mr Cortez had restricted the freedom of one of their colleagues, which justified their dismissal; (ii) the second instance court affirmed the legality of the dismissals; and (iii) the complainant organization has not provided any concrete evidence to back its claim that the dismissals constituted anti-union acts.
4. 335. In view of the above, the Committee observes that the question of the legitimacy of the dismissals of Mr Mezu and Mr Cortez was confirmed by first and second instance judgments and has given rise to a special judicial review by the Labour Chamber of the Supreme Court of Justice, the outcome of which is pending. The Committee also notes that the claim that the dismissals constitute anti-union acts did not form part of the arguments put forward before the national courts. In these circumstances, the Committee will not pursue its examination of this aspect of the case.
5. 336. Regarding the alleged need to abrogate Decree No. 2127 of 1945, and for public sector disciplinary dismissals to be governed by Act No. 734 of 2002, the Committee observes that the complainant organization does not explain how Decree No. 2127 of 1945 fails to guarantee sufficient protection against anti-union discrimination. The Committee therefore lacks the information necessary for it to adopt a position in relation to this second allegation, and will not pursue its examination of the matter unless it receives further information from the complainant organization.