Informe definitivo - Informe núm. 391, Octubre 2019

1. 115. The complaint is contained in a communication from the National Union of Workers of Chile (UNT) and the Autonomous Central of Workers of Chile (CAT) dated 31 July 2017.
2. 116. The Government sent its observations in communications dated 15 January 2018 and 13 August 2019.
3. 117. Chile 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), and the Labour Relations (Public Service) Convention, 1978 (No. 151).

A. The complainants’ allegations

1. 118. In their communication dated 31 July 2017, the complainant organizations state that since May 2010, Mr Richard Bobadilla Campos has held an employment contract without limit of time as a mining truck operator at the state mining company CODELCO (hereinafter “the mining company”) in the region of Antofagasta, in the Radomiro Tomic division, in the city of Calama. They allege that, in August 2012, after submitting a complaint to the labour inspectorate for non-compliance by the company with a collective agreement and after having presented himself in September 2012 as a candidate to be a trade union official at the elections of the Workers’ Union of the Radomiro Tomic Division, Mr Bobadilla suffered bullying and workplace harassment. The trade union organizations indicate that although the worker was not elected to be a trade union official, following the conclusion of the union’s electoral process the workplace harassment caused him to suffer a deep depression threatening his state of health, as confirmed in Decision No. 52223 issued by the Social Security Supervisory Authority in August 2014. The complainant organizations allege that, in accordance with article 71 of the Occupational Accidents and Diseases Act, No. 16744, in the event of occupational diseases, workers should be transferred to tasks where they are not exposed to the abuse and harassment caused by their superiors.
2. 119. The complainant organizations state that on 1 November 2012, the enterprise dismissed Mr Bobadilla on the grounds of article 160(7) of the Labour Code, namely, serious failure to fulfil the obligations stipulated in the employment contract. The complainant organizations attached a copy of the letter of dismissal, which shows that the serious failure allegedly consisted of incitement to unrest and organizing an activity to see a football match of Chile versus Argentina without prior authorization from his direct superior. The complainant organizations indicate, however, that in a report prepared by the Provincial Labour Inspectorate of El Loa Calama dated 3 May 2013 (hereinafter “inspection report”), on the request of the labour judge of El Loa Calama, in respect of an application for the protection of fundamental rights brought by Mr Bobadilla, it was found that he had in fact requested authorization from his superior to watch the football match; that there were no documents that said anything about the employer withdrawing that authorization and that, in any case, general authorization is granted by the enterprise in a collective instrument for such events.
3. 120. The complainant organizations state that Mr Bobadilla began a hunger strike on 26 April 2017 for reinstatement following his arbitrary and unjust dismissal, and indicate that, with the support of the Catholic church, the Government was requested to hold round-table talks with a view to finding a fair solution, but that no reply was received from the Government in this respect. According to a report on the state of health of Mr Bobadilla prepared by the Human Rights Committee of the Medical College on 26 June 2017, his health was a matter of concern from a humanitarian point of view, requiring urgent measures to be taken by the authorities.

B. The Government’s reply

1. 121. The Government sent its own observations and also those of the mining company in its communications of 23 January 2018 and 13 August 2019. The company indicates that Mr Bobadilla was contracted on 3 May 2010 under an employment contract without limit of time as a mine operator at the Radomiro Tomic worksite and that, on 1 November 2012, his employment relationship was terminated by means of a letter of dismissal, on the grounds set out in article 160(7) of the Labour Code, namely, the serious failure to fulfil the obligations stipulated in the employment contract. According to the letter of dismissal: (i) Mr Bobadilla had arranged, for Sunday 14 October to 16 October, an activity during his working hours to see a football match, without having the authorization of his direct superior, and had even coordinated this activity with staff from an externally contracted company; (ii) with the intention of investigating the incident, on 24 October, following the rest to which he was entitled, the worker met with the labour relations department; and (iii) without having authorization from his superior or having a valid reason, the worker left work before the end of his working hours on 25 October 2012 and did not come to work on the next working day, which was 29 October 2012, again without authorization.
2. 122. The Government states that on 26 January 2013, Mr Bobadilla submitted an application for the protection of fundamental rights before the Labour Court of Calama as well as an action for unfair dismissal and the recovery of work-related benefits, both of which were rejected in a judgment dated 13 August 2013. In the judgment, the Court stated that: (i) evidence had not been submitted regarding how the complaint that the former worker had lodged with the labour inspectorate (in respect of which no labour violations were proven and the company did not receive a fine) could have caused animosity against him; (ii) there were no elements to prove that there had been hostility towards the former worker as a result of his trade union candidacy; (iii) Mr Bobadilla had arranged an activity during his working hours to see a football match, without having the authorization of his direct superior, who decides whether or not to authorize this type of activity; on 25 October, after having met with the labour relations department and finding himself subject to an internal investigation process designed to determine his responsibility in the incident relating to the football match, the worker, without authorization from his superior or having a valid reason, left work before the end of his working hours on 25 October 2012 and did not come to work on the next working day, 29 October 2012, again without authorization or justification of any kind; and (iv) with regard to the psychiatric report in which the former worker was allegedly diagnosed with reactive depression due to non-work-related mourning and the fact that in November 2012 the depression had allegedly returned, the Court considered that its value as evidence should be set aside as being well below the minimum standard required.
3. 123. The Government states that on the basis of the above the Court rejected the payment of the compensation requested and only found as being owing to the worker a sum corresponding to proportional leave coverage. It also states that, on 26 August 2013, the former worker lodged an appeal for annulment against the judgment mentioned and that the Court of Appeal of Antofagasta upheld the first-instance judgment in its entirety, noting that according to the inspection report the authorization to watch the match had been revoked one day before the match for reasons of productivity. The Government states that on 23 December 2013, the Court of Appeal of Antofagasta found the case to be enforceable and the company paid the sum corresponding to the proportional leave coverage at the Court of Calama.
4. 124. With regard to the report to which the complainant organizations refer, prepared by the Social Security Supervisory Authority in 2014 (Decision No. 52223) the company states that according to the report the former worker suffered from depression during a period following the end of the employment relationship with the company, namely from November 2012 until January 2013. It also states that the former worker wrongly interpreted article 71 of the Occupational Accidents and Diseases Act, No. 16744, given that this legislation stipulates that “members affected by an occupational disease should be transferred, by the enterprise where they are providing their services, to other tasks where they would not be exposed to the causal agent of the disease”. According to the company, the obligation incumbent on the employer relates to workers who continue their present employment relationship and in no circumstance to those whose contractual ties have ended. Neither is there a requirement under the legislation in question to reinstate the worker, as incorrectly maintained in the claim.
5. 125. The company also states that it tried to reach an agreement with the former worker in order to conclude the case, without acknowledging any liability, and it offered the former worker a sum of money, which was not accepted because his objective was to be reinstated. The Government states that for the duration of the hunger strike every possible effort was made to bring it to an end and that, on 24 April 2017, a representative of the Deputy Secretary of the Interior filed an application for protection with the Court of Appeal of Santiago to protect the life and physical integrity of the former worker, and the Court requested a report from the Ministry of Labour and Social Welfare in which, among other points, it was emphasized that the former worker was in grave danger and that his life was at risk. On 2 August 2017, the Court granted the application for protection and ordered that Mr Bobadilla be taken to hospital. The Government states that following his transfer, the hospital issued two statements, the second on 8 August 2017 in which it noted, among other details, that the patient was still receiving medical and psychosocial support.
6. 126. The Government also states that Mr Bobadilla initiated two other legal proceedings in 2017: one application for the protection of fundamental rights before the Court of Appeal of Santiago (claiming reinstatement on the grounds of having suffered an occupational disease caused by dysfunctional reporting relationships); and a claim for damages in respect of an occupational disease, loss of earnings and moral damages before the Labour Court of First Instance of Santiago. On 21 August 2017 the Court found the application for protection to be inadmissible as the time limits to file the application for protection had expired, and also the alleged events had been previously resolved at the judicial level. Mr Bobadilla lodged an appeal and on 2 October 2017 the Supreme Court upheld the appealed decision. The Government also states that on 14 November 2017 the company was notified that a claim for damages in respect of an occupational disease, loss of earnings and moral damages had been submitted for the same events contained in the previously resolved claim on the violation of fundamental rights and in the application for protection. With respect to this proceeding, the Government states that, on 25 January 2019, the Court rejected the claim and, on 5 July 2019, the Appeals Court of Antofagasta rejected an appeal for annulment filed against the first instance judgment. The Government also informs that on 26 July, the said Court of Appeals declared admissible a request for unification of jurisprudence presented by the complainant and that, to date, said process is pending before the Supreme Court.

C. The Committee’s conclusions

1. 127. The Committee observes that in this case the complainant organizations are denouncing the anti-union nature of the dismissal of a worker from a state mining company, who, a number of years after being dismissed, went on a hunger strike to demand reinstatement.
2. 128. The Committee notes the allegation by the complainant organizations that, after having submitted a complaint to the labour inspectorate in August 2012 for non-compliance by the company with a collective agreement and after having presented himself in September 2012 as a candidate to be a trade union official, Mr Bobadilla suffered bullying and workplace harassment. It also notes that in November 2012 he was dismissed for having arranged an activity to watch a football match, despite having requested authorization from his superior to do so, which is substantiated in an inspection report. They also allege that the workplace harassment caused him to suffer a deep depression and state that on 26 April 2017 he began a hunger strike to demand his reinstatement, which, according to publicly available information, ended on 29 August 2017, without him achieving his objective.
3. 129. In this respect, the Committee notes that the Government and the company both state that the dismissal was due to serious non-compliance with the employment contract, which was corroborated by the Labour Court of Calama, which rejected the application for the protection of fundamental rights and an action for unfair dismissal initiated by Mr Bobadilla in January 2013. The Committee observes that in that judgment the Court concluded that it had not been proven that there had been hostility against the former worker for having submitted a complaint to the labour inspectorate or for having participated in trade union elections. The Committee also observes that the Court of Appeal of Antofagasta rejected an appeal for annulment of the judgment mentioned and noted that according to the inspection report the authorization to watch the football match had been revoked one day before the match.
4. 130. The Committee notes the company’s statement that it tried to reach an agreement with the former worker, without acknowledging any liability, and that despite offering him a sum of money, it was not accepted because his objective was to be reinstated. It also notes that, according to the Government, in order to protect the life and physical integrity of the former worker during his outdoor hunger strike, an application for protection was filed and on 2 August 2017 the Court of Appeal of Santiago ordered that he be taken to hospital, where he allegedly stayed until 29 August of the same year. The Committee further notes that, according to the Government, Mr Bobadilla initiated other legal proceedings in 2017 that were not related to the alleged anti-union nature of the dismissal.
5. 131. , The Committee notes that the legal proceedings initiated at the national level focused primarily on issues unrelated to the anti-union nature of the dismissal (the existence or otherwise of authorization to arrange an activity relating to a football match, and the worker’s depression) and that they only referred marginally to the candidacy of the former worker for the position of trade union official. The Committee observes that the judicial decisions found that the dismissal had been due to serious non-compliance with the employment contract and that there was no evidence of the impact of the worker’s candidacy on that decision. In view of the above conclusions and not having the necessary information to determine the existence or otherwise of anti-union discrimination against Mr Bobadilla, the Committee considers that this case does not call for further examination.