Informe definitivo - Informe núm. 381, Marzo 2017

1. 309. The complaint is contained in a communication presented by the General Confederation of Labour (CGT) dated 5 June 2014.
2. 310. The Government sent its observations in communications dated 6 February and 20 October 2015.
3. 311. Colombia has ratified the Freedom of Association and Protection of the Rights 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, 1947 (No. 154).

A. The complainant’s allegations

1. 312. In its communication dated 5 June 2014, the complainant organization denounces the anti-union nature of the dismissal of a member and former leader of the Union of Banking Sector Workers (ADEBAN) by the CORPBANCA S A enterprise (hereinafter, the bank). According to the complainant, Ms González Díaz was dismissed without justification further to being a member of the ADEBAN executive committee and immediately after the expiry of the six-month period which protects former trade union officers, according to the provisions of section 405 et seq. of the Colombian Labour Code. The complainant alleges that the aim of the dismissal of Ms González Díaz was to weaken the trade union and to discourage those who wish to hold union office in the future.
2. 313. The complainant organization indicates that Ms González Díaz brought an action before the ordinary courts to be reinstated on grounds of trade union immunity, in which she stated the following: (i) Ms González Díaz began working for the bank as a consultant on 16 June 2008; (ii) in March 2013 she became a member of the trade union and on 10 April of the same year was appointed secretary of its executive committee; (iii) on 13 September 2013, a new executive committee was elected, on 16 September the bank was notified of the decision in writing, and on 19 September the Ministry of Labour was notified; (iv) the Ministry informed the bank of the new composition of the executive committee on 26 September 2013, which marked the start of the six-month period of trade union immunity; and (v) the bank terminated the contract of employment on 19 March 2014, when Ms González Díaz still enjoyed trade union immunity.

B. The Government’s reply

1. 314. In its communications dated 6 February and 20 October 2015, the Government transmitted the observations of CORPBANCA S A and its own observations, according to which: (i) on 28 July 2014, the Fifteenth Labour Court of Bogotá rejected the action brought by Ms González Díaz to be reinstated on grounds of trade union immunity with the argument that on the date of termination of employment the claimant was not protected by union immunity, since the six-month time period, which protects former trade union officers, that had already elapsed; (ii) that ruling was upheld at second instance by the Labour Chamber of the High Court of Bogotá on 25 August 2014, making the first instance ruling final; (iii) while Colombian law allows employment contracts to be terminated by the employer unilaterally and without justification subject to the award of compensation, in the case of Ms González Díaz the decision to dismiss her was not taken arbitrarily but rather as part of a restructuring process which the bank was obliged to undertake as the result of a merger with another bank. The restructuring process led to ten justified dismissals, 43 unjustified dismissals, 28 cases of termination of employment by mutual consent and 239 resignations; (iv) the area where Ms González Díaz worked went from having 12 staff in 2013 to ten staff in 2014 and those that continued to work in that area were assigned new posts and tasks; (v) at no point was it proven that Ms González Díaz’s contract of employment had been terminated because of membership of the trade union or membership of the union executive committee; (vi) more than 14 trade unions coexist at the enterprise, which also has a collective labour agreement signed by the National Union of Banking Employees–Colombian Association of Banking Employees (UNEB–ACEB) and ADEBAN, covering 1,742 employees (53 per cent of all employees at the bank), in force from 1 September 2013 until 31 August 2015.
2. 315. In its communication of 20 October 2015, the Government attaches the certificate from the Chamber of Commerce which verified the merger of the two enterprises, through Public Act No. 1527 dated 1 June 2014. The Government also attaches a copy of the second instance ruling handed down by the Labour Chamber of the High Court of Bogota on 25 August 2014, which shows that: (i) Ms González Díaz’s immunity would have ended on 16 March 2014, namely six months after the enterprise was notified that a new executive committee had been appointed, and therefore the enterprise was not obliged to seek judicial authorization to terminate the employment contract on 19 March 2014; (ii) according to ruling C-4468 of the Constitutional Court, the changes in composition of an executive committee taking effect from when the trade union notifies the labour inspectorate and the employer in writing, and as both notifications are not carried out simultaneously, it is considered that immunity begins from the time of the first notification, which in the present case was the notification to the employer on 16 September 2013; and (iii) the first instance ruling of the Fifteenth Labour Court of Bogotá on 28 July 2014, which absolves the enterprise, is therefore upheld.

C. The Committee’s conclusions

1. 316. The Committee observes that in the present case the complainant organization denounces the anti-union nature of the dismissal of a member and former leader of the Union of Banking Sector Workers (ADEBAN) by the bank. According to the complainant, Ms González Díaz was dismissed immediately after the expiry of the six-month period which protects former trade union officers, according to section 405 et seq. of the Colombian Labour Code. The Committee notes the complainant’s allegation that the aim of the dismissal was to weaken the trade union and to discourage those who wish to hold union office in the future.
2. 317. The Committee also notes the complainant organization’s indication that Ms González Díaz brought an action to be reinstated on the basis of trade union immunity, alleging that the bank terminated her employment contract when she still enjoyed statutory protection, as six months had not elapsed since she had ceased to be the secretary of the ADEBAN executive committee. In that regard, the Committee notes that the bank and the Government state that: (i) on 28 July 2014, the Fifteenth Labour Court of Bogotá rejected the action brought by Ms González Díaz to be reinstated on grounds of trade union immunity with the argument that on the date of termination of employment the claimant was not protected by union immunity, since the six-month period which protects former trade union officers had already elapsed; (ii) that ruling was upheld at second instance by the Labour Chamber of the High Court of Bogotá on 25 August 2014, making the first instance ruling final; (iii) while Colombian law allows employment contracts to be terminated by the employer unilaterally and without justification subject to the award of compensation, in the case of Ms González Díaz, the decision to dismiss her was not taken arbitrarily but rather as part of a restructuring process undertaken as the result of a merger with another bank. The restructuring process led to ten justified dismissals, 43 unjustified dismissals, 28 cases of termination of employment by mutual consent and 239 resignations; (iv) the area where Ms González Díaz worked went from employing 12 staff in 2013 to ten staff in 2014 and those that continued to work in that area were assigned new posts and tasks; (v) Ms González Díaz has been awarded the relevant compensation for unjustified dismissal; (vi) more than 14 trade union organizations coexist in the bank, which also has a collective labour agreement signed with the National Union of Banking Employees–Colombian Association of Banking Employees (UNEB–ACEB) and ADEBAN, covering 1,742 employees (53 per cent of all employees at the bank), in force from 1 September 2013 until 31 August 2015; and (vii) the complainant organization has not proved that the employment contract was terminated because of membership of the trade union or membership of the union executive committee.
3. 318. From the information provided by the complainant organization and the Government, the Committee observes firstly that Ms González Díaz was dismissed a few days after the expiry of the period of protection (trade union immunity), which lasted six months after the end of her term of union office, and that the legal action brought by Ms González Díaz to be reinstated, claiming that the protection period had not yet elapsed on the day she was dismissed, was rejected by the courts. The Committee stresses that the said legal judicial action focused exclusively on determining when the trade union immunity was valid and when it expired and for that reason, in accordance with the action brought, the reasons for the dismissal were not examined by the court.
4. 319. In this regard, the Committee notes the complainant organization’s allegation that the dismissal of Ms González Díaz is of an anti-union nature in that its aim was to weaken the trade union and discourage future candidates for union office. For its part, the bank states that the dismissal of Ms González Díaz was unrelated to the employee’s trade union activities, given that it resulted from restructuring due to the merger with another bank, a process which led to job losses. On that matter, the Committee notes the information from the bank, according to which the area where Ms González Díaz worked went from having 12 staff in 2013 to ten staff in 2014 and those that continued to work in that area were assigned new posts and tasks. The Committee also notes that the letter of dismissal attached by the complainant indicates that Ms González Díaz was dismissed without good reason (unjustified dismissal) and that no mention was made in that letter of the enterprise’s restructuring process.
5. 320. Although it appears from the matters described above that there are sufficient grounds to justify a thorough examination by the labour inspectorate or the courts of the reasons for the dismissal of Ms González Díaz, the Committee does not have sufficient information to determine whether she was dismissed on anti-union grounds. Under these circumstances, the Committee will not pursue its examination of this case.