Allegations: The complainant organization alleges that, disregarding his status
as a trade union official, the authorities transferred and subsequently dismissed the Deputy
General Secretary of the National Federation of Associations and Organizations of Public
Employees (FENASEP)
- 419. The complaint in the present case is contained in a communication
from the National Federation of Associations and Organizations of Public Employees
(FENASEP) dated 18 November 2013.
- 420. The Government sent its observations in communications dated 2 June
and 27 October 2014.
- 421. Panama 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
A. The complainant’s allegations- 422. In a communication dated 18 November 2013, FENASEP alleges that the
Deputy General Secretary of FENASEP, Mr Edgardo Voitier, was transferred from one
province (Colón) to another (Panamá) without being consulted and was subsequently
dismissed by the National Customs Authority pursuant to Administrative Decision No. 398
of 12 November 2013, without any disciplinary reason or grounds for dismissal being
given.
- 423. The complainant organization explains that Mr Edgardo Voitier had
been appointed as a clerk but worked as a customs inspector, and that the decision in
question disregarded the protection that he was afforded in his capacity as Deputy
General Secretary and for having been expressly appointed by FENASEP as one of the three
officers who enjoy the privilege granted under section 185 of the Consolidated Text of
Act No. 9 of 20 June 1994, as amended. According to the provision in question: “The
following public servants, even if they do not occupy a public administration career
position, can be dismissed only for the reasons established in the present act: (1) the
General Secretary of any association or federation of public servants, from the time of
his or her selection until three months after the conclusion of the term of office for
which he or she was elected; and (2) up to three key officers of the executive boards or
executive committees of associations or federations of public servants, appointed by the
corresponding association or federation of public servants, for the duration of their
appointment by their organization. The names of these officers will be provided to the
General Directorate of the Public Administration …” Having been notified on 13 November
2013 of the contents of Decision No. 398 of 12 November 2013, Mr Edgardo Voitier filed
an application for reconsideration with the General Directorate of Customs on 18
November of the same year.
B. The Government’s reply
B. The Government’s reply- 424. In its communication dated 19 June 2014, the Government states that,
in dismissing Mr Edgardo Voitier on 12 November 2013, the appointing authority was
exercising its discretionary power, since his appointment is based on the trust that his
superiors have in him; and that the administrative procedure in question was carried out
in compliance with all procedural safeguards. The Government also states that, in
Administrative Decision No. 422 of 10 December 2013, a response was given to the
application for reconsideration filed by Mr Edgardo Voitier, upholding the contested
decision. Once the content of that decision had been notified, administrative channels
were exhausted.
- 425. In its communication dated 27 October 2014, the Government reported
that the National Customs Authority had rehired Mr Edgardo Voitier as a project
coordinator. The Government considered it important to highlight that the working
conditions of the official in the position to which he was transferred are, in terms of
remuneration, better than those he had prior to his dismissal. The Government also
stated that an application for review filed by Mr Edgardo Voitier with the Supreme Court
of Justice was pending a decision. It added that, as soon as the court’s decision on the
transfer is known, it will be accepted by the National Customs Authority.
- 426. Furthermore, the Government reports that this matter has also been
referred to the Committee for the Rapid Handling of Complaints relating to Freedom of
Association and Collective Bargaining, which arose from the Panama Tripartite Agreement
signed on 1 February 2012 and was officially established by Executive Decree No. 156 of
13 September 2013.
C. The Committee’s conclusions
C. The Committee’s conclusions- 427. The Committee notes that the complainant organization in this case
alleges the violation of the protection afforded to certain trade union officials (trade
union immunity) under the Consolidated Text of Act No. 9 of 20 June 1994, as amended,
and more specifically relates to the transfer and subsequent dismissal of trade union
official Mr Edgardo Voitier. The Committee notes the Government’s statements that: (1)
in dismissing Mr Edgardo Voitier, the appointing authority was exercising its
discretionary power and the administrative procedure in question was carried out in
compliance with all procedural safeguards; (2) subsequently Mr Edgardo Voitier was
rehired by the National Customs Authority as a project coordinator, with better
conditions in terms of remuneration than those he had previously; (3) an application for
review filed by Mr Edgardo Voitier with the Supreme Court of Justice, regarding his
transfer, is pending a decision; and (4) the case of this official has been referred to
the Committee for the Rapid Handling of Complaints relating to Freedom of Association
and Collective Bargaining. The Committee regrets the action of dismissal initially taken
against this trade union official given that the Consolidated Text of Act No. 9 of 20
June 1994, as amended, affords protection to active trade union officials against
dismissal and that the Government has provided no information on the specific events
that led to the dismissal, and has merely referred to the administration’s discretionary
power to dismiss him. Taking into account that the subsequent rehiring of this official
upheld the initial, previously decided transfer to another post, the Committee requests
the Government to communicate the outcome of the application filed with the Supreme
Court of Justice against his transfer and any agreement reached within the framework of
the Committee for the Rapid Handling of Complaints relating to Freedom of Association
and Collective Bargaining.
The Committee’s recommendation
The Committee’s recommendation- 428. In the light of its foregoing conclusions, the Committee invites the
Governing Body to approve the following recommendation:
- The Committee requests
the Government to communicate the outcome of the application filed with the Supreme
Court of Justice against the transfer of Mr Edgardo Voitier to another post, and any
agreement reached within the framework of the Committee for the Rapid Handling of
Complaints relating to Freedom of Association and Collective
Bargaining.