Informe definitivo - Informe núm. 397, Marzo 2022

1. 648. The complaint is contained in a communication dated 25 November 2016 submitted by the Trade Union Confederation of Workers of Peru (CSP).
2. 649. The Government sent its observations on the allegations in communications dated 4 and 8 August and 15 September 2017, 25 July 2018, 4 March and 5 April 2019, and 30 December 2021.
3. 650. Peru has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant’s allegations

1. 651. In its communication of 25 November 2016, the complainant organization alleges that an anti-union policy of the enterprise PERU OEH S.A. (hereinafter “the enterprise”) led to the dismissal of officials of the Trade Union of Workers of the Hotel Monasterio. In particular, it alleges that the General Secretary of the trade union, Mr Justo Ccahua Llacta, was dismissed in response to the exercise of his trade union rights.
2. 652. The complainant informs the Committee that the above-mentioned dismissal occurred on 29 May 2013 in the context of the submission of a list of demands. It indicates that Mr Llacta was accused of gross misconduct, allegedly for having disrespected the General Manager of the enterprise with coarse words. According to the complainant, the accusation was based on Mr Llacta’s activity and the complaints he submitted to the Ministry of Labour.
3. 653. The complainant affirms that the enterprise based its decision to dismiss Mr Llacta on events that occurred on 23 and 31 March and 28 April 2013, dates on which the trade union was conducting protest activities outside of working hours and outside the workplace, and that Mr Llacta’s dismissal was in fact part of a systematic anti-union strategy of the enterprise.
4. 654. Furthermore, the complainant indicates that, after a labour inspection of the premises, the Regional Labour Directorate of the Cuzco Regional Government found that the enterprise had committed various serious offences. According to Decision No. 255-2013-GR-CUS/DRTPE-DPSCL-SDILSST, which was issued by the Regional Labour Directorate of the Cuzco Regional Government on 20 December 2013 and a copy of which was provided by the complainant, the enterprise was fined 9,842 new soles for acts affecting freedom of association, such as obstructing trade union representation. The complainant states that this charge is evidence of the true anti-union motive of the measures used by the enterprise against the trade union officials.
5. 655. The complainant also reports that legal proceedings were initiated in connection with Mr Llacta’s dismissal and provides copies of the decisions handed down in the matter. According to the documents submitted alongside the complaint, an application by Mr Llacta seeking the annulment of his dismissal on the grounds of having submitted a complaint or participated in proceedings against the employer before the competent authorities, was declared founded in first instance on 13 January 2014. The above-mentioned documents also refer to the dismissal of another official of the Trade Union of Workers of the Hotel Monasterio, Mr Tito Loayza Porcel, whose application for reinstatement on the grounds of unfair dismissal was declared founded in first instance on 4 November 2015.
6. 656. Concerning the action brought by Mr Llacta, the complainant informs that the first instance ruling was overturned by the Constitutional and Social Chamber of Cuzco on 28 August 2014. It also refers to an application for judicial review that Mr Llacta filed, which the Standing Chamber of Constitutional and Social Law of the Supreme Court of Justice of the Republic found to be without merit. The complainant also indicates that it submitted an amparo action before the 11th Constitutional Chamber of the Lima High Court against the judges who had issued the ruling.

B. The Government’s reply

1. 657. In its communications of 4 August 2017 and 25 July 2018, the Government provides information on the labour inspections conducted with regard to the enterprise. It indicates that, between 2012 and July 2017, the Regional Directorate of Labour and Employment Promotion of Cuzco and the Regional Directorate of Labour and Employment Promotion of Metropolitan Lima issued 18 inspection orders and that seven of them resulted in infraction reports. The Government also confirms that the enterprise was fined for having obstructed trade union representation, by means of Decision No. 255-2013-GR-CUS/DRTPE-DPSCL-SDILSST.
2. 658. In its communication of 15 September 2017, the Government forwards the observations of the enterprise on the allegations in the present case. According to the enterprise, Mr Llacta was dismissed for gross misconduct and the dismissal procedure was followed in accordance with the labour legislation in force. It specifies that the gross misconduct consisted of: (i) failure to meet work obligations resulting in the loss of good faith in the working relationship, and (ii) verbal or written insults or abuse against the employer, its representatives, the worker’s superiors or other workers, whether inside or outside the workplace, when such acts are directly connected with the employment relationship.
3. 659. The enterprise states that on 21 May 2013, Mr Llacta went to the human resources office of the Hotel Monasterio and proceeded to use offensive language towards the Head of Human Resources, insulting him, accusing him of deception, embezzlement and fraudulent manoeuvres, and threatening to take legal action concerning alleged unlawful acts committed by staff members of the enterprise. The enterprise indicates that the General Manager of the hotel summoned Mr Llacta to his office to present his case, but Mr Llacta continued with his offensive attitude, again insulting him and threatening legal action against hotel staff. The enterprise affirms that Mr Llacta never denied these serious offences nor did he present his defence and that, in the light of these facts, the dismissal procedure was carried out.
4. 660. The enterprise indicates that Mr Llacta attempted unsuccessfully to have his dismissal annulled through legal proceedings. It emphasizes that he made use of all the legal remedies provided for in the Peruvian legal system for the protection of his rights, and that at the end of the judicial process, it was found that he had not been dismissed for anti-union reasons but because he had committed gross misconduct.
5. 661. As regards Mr Llacta’s complaint before the Regional Labour Directorate of the Cuzco Regional Government which gave rise to an administrative sanction and Decision No. 255-2013-GR-CUS/DRTPE-DPSCL-SDILSST, the enterprise informs that the sanction is currently the subject of legal proceedings before the Fifth Labour Court of Cuzco. According to the order admitting the claim, of which the enterprise provides a copy, the enterprise is seeking the annulment in full of the sanction and the cancellation of the fine of 9,842 new soles that was imposed.
6. 662. In its communications of 8 August 2017, 4 March and 5 April 2019 and 30 December 2021, the Government provides information on the legal proceedings concerning Mr Llacta’s dismissal. The Government indicates that: (i) Mr Llacta filed an application for the annulment of his dismissal, which was considered founded by the First Provisional Labour Court in a ruling dated 13 January 2014; (ii) the Constitutional and Social Chamber of Cuzco High Court overturned the ruling in a decision dated 29 August 2014 which considered the application to be unfounded; (iii) Mr Llacta lodged an application for judicial review of the latter decision before the Standing Chamber of Constitutional and Social Law of the Supreme Court of Justice, which on 10 June 2015 considered the application to be inadmissible; and (iv) after the case was remanded to the first instance, the First Provisional Labour Court of Cuzco ordered that the case be permanently dismissed, by decision of 22 March 2016.
7. 663. The Government also indicates that: (i) the complainant organization, representing Mr Llacta, lodged constitutional amparo proceedings (No. 5786-2016) against the judiciary and the judges of the Standing Chamber of Constitutional and Social Law of the Supreme Court of Justice who had ruled on the proceedings seeking to annul the dismissal; (ii) this application was declared inadmissible on 10 May 2016 and the Second Civil Chamber of Lima upheld this declaration of inadmissibility by decision of 24 April 2017; and (iii) the complainant lodged an application for constitutional review of this decision and the application was declared inadmissible by the 11th Constitutional Chamber of the High Court of Justice of Lima, which ordered that the case be permanently dismissed, by decision of 25 October 2019.
8. 664. The Government concludes that the proceedings seeking to annul Mr Llacta’s dismissal have been the subject of a final judicial decision and that Mr Llacta exercised his right to take action before the Peruvian courts without any restriction. Noting that the enterprise was not found to have committed any offence in relation to the dismissal, the Government requests that the case be closed.

C. The Committee’s conclusions

1. 665. The Committee notes that in the present case, the complainant organization denounces the anti-union policy of an enterprise in the hotel sector. It notes that the complainant alleges in particular that the dismissal of Mr Llacta, General Secretary of the Trade Union of Workers of the Hotel Monasterio, resulted from the exercise of his trade union rights.
2. 666. The Committee takes note of the chronology of events provided by the complainant, the Government and the enterprise, as follows: (i) while representing the Trade Union of Workers of the Hotel Monasterio, Mr Llacta reported the enterprise’s non-compliance with the collective agreement in force and filed complaints with the Ministry of Labour; (ii) between 2012 and July 2017, the administrative complaints against the enterprise resulted in the issuance of 18 inspection orders, seven of which resulted in infraction reports; (iii) in March and April 2013, various protest activities were organized by the trade union in defence of its right to collective bargaining; (iv) on 29 May 2013, Mr Llacta was dismissed in the context of the submission of a list of demands; (v) on 20 December 2013, the Regional Directorate of Labour of the Cuzco Regional Government issued Decision No. 255-2013-GR-CUS/DRTPE-DPSCL-SDILSST, which fined the enterprise for obstructing trade union representation; (vi) the enterprise contested the imposition of the fine by lodging an appeal before the Fifth Labour Court of Cuzco; (vii) on 13 January 2014, an application by Mr Llacta seeking to annul his dismissal was declared founded in first instance; (viii) on 29 August 2014, this ruling was overturned by the High Court of Justice of Cuzco; (ix) on 10 June 2015, an application for judicial review filed by Mr Llacta was ruled inadmissible by the Supreme Court of Justice; (x) on 4 November 2015, an application for reinstatement filed by Mr Porcel, another trade union leader who had been dismissed by the enterprise, was declared founded in first instance; (xi) on 10 May 2016, constitutional amparo proceedings filed by the complainant on behalf of Mr Llacta were declared inadmissible, a ruling which was upheld by a decision of 24 April 2017 of the Second Civil Chamber of Lima; and (xii) an application filed by the complainant for constitutional review of that decision was declared inadmissible by the High Court of Justice of Lima, which on 25 October 2019 ordered that the case be permanently dismissed.
3. 667. With respect to the dismissal of the General Secretary of the trade union, the Committee notes that, according to the complainant: (i) dismissals are part of a systematic anti-union strategy of the enterprise to address the protest activities conducted by the trade union and in response to the complaints of non-compliance with the collective agreements signed by the parties; (ii) the accusation of gross misconduct levelled at Mr Llacta for allegedly being disrespectful to the General Manager of the enterprise was due to his involvement in the trade union organization; (iii) that accusation alleged events that occurred during trade union protest activities held outside his working hours and outside the workplace; and (iv) the true anti-union motive of the measures applied against the trade union officials is evidenced by the imposition of a fine on the enterprise.
4. 668. The Committee also notes the reply of the enterprise that was communicated by the Government, in which it states that: (i) Mr Llacta failed to meet his employment obligations, which constitutes a lack of good faith at work, and insulted and verbally abused his Head of Human Resources and his General Manager; (ii) Mr Llacta was dismissed as a result of this gross misconduct in accordance with the dismissal procedure provided for in the labour legislation in force; and (iii) the judicial proceedings taken by Mr Llacta established that his dismissal was not due to anti-union motives. Furthermore, the Committee notes that the Government, for its part, underlines that Mr Llacta exercised his right to take legal action before the courts without any limitation and that it was not established that the enterprise committed any offence in relation to his dismissal.
5. 669. While recalling that, with regard to the reasons for dismissal, the activities of trade union officials should be considered in the context of particular situations which may be especially strained and difficult in cases of labour disputes and strike action [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, para. 1132], the Committee duly notes that, after a first instance decision ordered his reinstatement on the grounds of anti-union dismissal, the other judicial bodies considered that Mr. Llacta's dismissal was justified.
6. 670. Observing that the dismissal of the General Secretary of the trade union took place in the context of a collective dispute between the enterprise and the trade union that gave rise to: (i) the imposition of a fine by the Regional Labour Directorate for obstruction of trade union representation; and (ii) the reinstatement of another dismissed union official, the Committee trusts that the Government will continue to take all measures necessary to ensure the free exercise of trade union activities within the enterprise that is the subject of the present case.