Report in which the committee requests to be kept informed of development - Report No 349, March 2008

Case No 2555 (Chile) - Complaint date: 30-JAN-07 - Closed

Allegations: Dismissal of a trade union official by the National Youth Service

1. 563. The complaint is contained in a communication from the National Association of Regional Officials of the National Youth Service (SENAME-ANFUR), dated January 2007. The Government sent its observations in a communication dated 19 September 2007.
2. 564. 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), the Workers’ Representatives Convention, 1971 (No. 135), and the Labour Relations (Public Service) Convention, 1978 (No. 151).

A. The complainant’s allegations

1. 565. In its communication of January 2007, SENAME-ANFUR alleges that the trade union official Bernardo Hernández de la Fuente was dismissed by a simple administrative decision, in proceedings which allowed no real possibility of defence for a trade union official whom management wanted to dismiss.
2. 566. According to the complainant organization, the trade union official in question, who was president of SENAME-ANFUR in the city of Talca, had 20 years of service and was always among the most highly rated officials, was accused, disciplined and dismissed from his post for allegedly logging into a computer in order to gain access to confidential information. This was all based on supposition, rather than any concrete evidence, and during the course of the administrative proceedings the authorities responsible for carrying out the investigation requested by SENAME failed to follow the appropriate procedures; evidence in the form of expert reports, interviews and so on was not obtained.
3. 567. The complainant organization explains that on 5 May 2004, through resolution No. 671, the Regional Directorate of SENAME ordered administrative proceedings in order to ascertain the administrative liability of the official in question. This resulted in a “confidential memorandum” by Yessenia Díaz Jorquera to the Regional Director of SENAME, alleging that, on 16 April 2004, she had seen the trade union official in question in the vicinity of a computer used to store information relating to proceedings in which he was involved. In other words, the accusation was based solely on the fact that the trade union leader had been seen near a computer, not because he had been interfering or attempting to review information (for example). Ms Díaz Jorquera was the sole accuser and witness, and admits in her statements that she did not actually see the union official log in to the computer but merely had a feeling that that was the case, since she was the only person with the password for the computer in question. However, no proof of this has been offered.
4. 568. In the view of the complainant organization, the proceedings were such as to obstruct due process and the trade union official was in the end formally dismissed from his post on 6 May 2005 with the approval of the National Director. Even if the alleged offence (attempt by the accused to view information on the computer) took place, the sanction applied by the administrative authority was disproportionate to the offence, which would not appear to justify dismissal, especially given that the official in question acted on occasions as a prosecutor or assistant to the institution’s lawyers as well as being president of the regional trade union organization and was required to carry on constant dialogue with the authorities. The offence, if it had actually been committed, would merit an administrative sanction at the most (an adverse comment or a reduction in salary).
5. 569. The complainant organization states that it sought protection from the Appellate Court of Tulca of which SENAME claims to have no competence in the matter. On 15 November 2005, the Appellate Court of Tulca ruled itself to have no competence in the case and referred the case to the Santiago Court of Appeal, as requested. The Santiago Court, on 1 March 2006, rejected the appeal for protection, and SENAME then proceeded with the dismissal of the trade union official Bernardo Hernández de la Fuente.
6. B. The Government’s reply
7. 570. In its communication dated 19 September 2007, the Government states that under national legislation, comprising a series of standards both legal (Law No. 19296 on associations of public administration officials) and constitutional, the right to form unions in accordance with the criteria established in ILO Conventions Nos 87 and 98 is recognized. The Government adds that the immunity of trade union officials is regulated and protected by laws concerning the employment of workers in the public and private sectors, in accordance with the principles of Conventions Nos 87 and 98. These standards, contained in national law, are also consonant with statements made by the Committee on Freedom of Association. Paragraph 804 of the Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, states that: “The Committee has pointed out that one way of ensuring the protection of trade union officials is to provide that these officials may not be dismissed, either during their period of office or for a certain time thereafter except, of course, for serious misconduct.” Chilean law guarantees this protection, with the sole exception of cases of serious misconduct by the worker, a situation which is recognized by law and constitutes an exceptional situation in which the authorization of an autonomous body is also required. Law No. 19296 grants due recognition and employment security to trade union officials of public employees’ associations. For example, section 25 expressly states in its first paragraph:
8. Directors of associations of public service employees shall enjoy trade union immunity, that is, shall be protected from dismissal, from the date of their election until six months after leaving union office, provided that termination does not occur as a result of censure by the assembly of the association in question or of the disciplinary measure of formal removal from office, approved by the Office of the Comptroller General of the Republic.
9. Similarly, immunity shall not apply in the case of dissolution of an association where that is entailed by the application of section 61(c) and (e), or is the result of factors provided for in the internal regulations, provided that, in the latter case, the factors in question imply culpable fault on the part of the directors of the associations.
10. In this regard, during the period referred to in the previous paragraph, officials shall not be transferred from the place or post they occupy without their written authorization. Similarly, they shall not be subject to annual assessments during the periods referred to in the preceding paragraphs, unless this is expressly requested by the official. If no such request is made, the most recent assessment shall apply for all legal purposes.
11. 571. It follows from the above that only in cases of censure by the assembly of an association, or the latter’s dissolution, or formal dismissal proceedings, may an official be removed from his or her post, for which authorization is required by the Office of the Comptroller General of the Republic, “a body independent of all ministries, authorities and offices of the State, whose purpose is among other things to determine the constitutionality and legality of decrees and resolutions of department chiefs which must be carried out by the Office of the Comptroller General, monitor compliance with the administrative regulations, and carry out all the other functions entrusted to it by the Law in question and other provisions that are currently in force or may be adopted in future” (section 1, Organic Constitutional Law No. 10336 regarding the Office of the Comptroller General of the Republic).
12. 572. Trade union officials, both in the public service and in the private sector, enjoy protection from dismissal in order to allow them to carry out their union functions, in such a way that the lifting of immunity and subsequent termination of employment is an exceptional case subject to more stringent criteria, and accordingly also to a restrictive interpretation.
13. 573. As regards the specific case to which the complaint refers, the Government states that in resolution No. 671 of 2004, the Regional Directorate of SENAME in the seventh region ordered administrative proceedings with a view to determining possible administrative liability of the official Bernardo Hernández de la Fuente in connection with the allegations made in the unnumbered internal memorandum from Yessenia Díaz Jorquera to the effect that the principle of administrative fairness had been seriously violated by an attempt to gain access, without the authorization of the investigator concerned, to statements by witnesses and one of the parties in the case held on the investigator’s computer. As a result of the investigation, the administrative responsibility of Bernardo Hernández de la Fuente was established, charges against him were formulated and he was notified of the charges in due time and form. The charges alleged non-compliance with the provisions of section 61(g) of DFL No. 29, published on 16 March 2005, which combines, coordinates and streamlines the provisions of Law No. 18834 (Administrative Statutes). The strict observance of the principle of administrative fairness, implies morally unimpeachable conduct on the part of officials and honest and loyal service with a view above all to the public interest, rather than private interest.
14. 574. Through resolution No. 296 of 31 March 2006, the National Director of SENAME approved the administrative proceedings and applied the disciplinary sanction of removal from office of the official in question, as provided for in section 121(d) of DFL No. 29. This was implemented on the basis of the attribution of administrative responsibility to him in disciplinary proceedings, in accordance with the provisions of section 119(2) of DFL No. 29. The proceedings were upheld by the Office of the Comptroller General on 7 April 2006, in accordance with the Political Constitution and the associated Organic Constitutional Law No. 10336. That body enjoys autonomy under the terms of article 98 of the Political Constitution; this is a fundamental attribute which guarantees the greatest possible independence from other state authorities. It follows that it is the exclusive prerogative of the Comptroller General under the terms of the Constitution to decide whether or not a decree or resolution is consistent with the law in force, and this means that any decisions which it may adopt in the exercise of that function cannot be challenged by recourse to protection procedures under law.
15. 575. As regards the status of union official Hernández de la Fuente, it must be noted that section 25 of Law No. 19296 stipulates that executive officers of associations of public officials enjoy immunity, that is to say, protection from dismissal, from the date of their election until six months after the end of their term of office provided that the term of office is not terminated because of censure by the association’s assembly, or by application of the disciplinary sanction of removal from office approved by the Office of the Comptroller General of the Republic. Thus, on 7 April 2006, the Comptroller General, in view of the fact that the National Executive Board approved the removal from office of the official in question, granted its authorization in accordance with the powers attributed to it under section 25 of Law No. 19296 (concerning associations of public administration officials), having examined the legal, formal and substantive aspects of the proceedings and the statements made by the official concerned.
16. 576. In the case of the official who has lodged the appeal, there are administrative proceedings which observe legal standards, and in which an hierarchical superior applies one of a number of disciplinary sanctions provided for by the Administrative Statutes for Public Officials. This gives rise to an administrative res judicata which is not subject to any further proceedings unless the original administrative proceedings are declared null and void. The Government adds that the removal from office of the appellant was ordered after the completion of summary proceedings in which he had been charged, and after the evidence had been duly assessed by the investigator, as is required in such proceedings.
17. 577. As regards the application for protection lodged by Mr Hernández de la Fuente against the SENAME regional and national directors, the Santiago Court of Appeal ruled itself competent to hear the case, which was heard in its entirety by the Talca Court of Appeal, and gave the following ruling on 5 December 2005:
18. Considering that: (1) the appellant has lodged a precautionary application for protection against Doña Marjorie Maldonado Cárdenas, Regional Director of SENAME, and against Carmen Andrade Lara, Deputy National Director of the same service, requesting a ruling to overturn the resolution of 6 September 2005 and the confidential communication of 8 September of the same year, which communicated the disciplinary measure of dismissal from the grade 5 post in the Talca Regional Department of the National Youth Service (SENAME), in violation of the right of property with regard to public office and violating the constitutional guarantee enshrined in article 19(24) of the Political Constitution of the Republic; (2) the sanction applied against the appellant was based on facts dealt with in administrative proceedings which led to dismissal; (3) the request for protection lodged by the appellant claims that the disciplinary measure of dismissal was illegal and arbitrary, despite the fact that it followed administrative proceedings that respected legal standards and allowed the individual in question the benefit of due process of law, and the competent authority’s ruling cannot therefore be deemed to be illegal or arbitrary; the constitutional guarantee invoked by the appellant was therefore not violated. For these reasons, and in accordance with article 20 of the Political Constitution of the Republic, and with the agreement of the Supreme Court, the application for protection is hereby rejected.
19. 578. Lastly, Bernardo Hernández de la Fuente initiated proceedings against the Director of SENAME before the 19th Civil Court of Santiago, and sought a ruling overturning all the administrative proceedings against him. The purpose was to quash the decision of the National Director implementing the sanction of dismissal and reinstate him immediately in the post he had held in April 2004. The case is currently pending and no judicial decision has been handed down.

C. The Committee’s conclusions

1. 579. The Committee notes that in the present complaint, the complainant organization alleges that SENAME removed trade union official Bernardo Hernández de la Fuente (president of the complainant union in the city of Talca) from his post on the grounds of his alleged attempt to log into a computer used to store confidential information, and in order to do so used an administrative procedure which contravened the rules of due process and resulted in the imposition of a penalty which, even if the alleged offence had been proved – and the complainant denies this, his accuser having merely claimed to have seen him in the vicinity of a computer containing confidential information – would not justify dismissal, but rather an adverse comment or reduction in salary.
2. 580. The Committee takes note of the Government’s statements to the effect that: (1) legislation grants trade union officials protection from dismissal except in cases of the disciplinary sanction of removal from office imposed by the administrative authority after the appropriate administrative proceedings and confirmed by the Comptroller General of the Republic, a body independent of other state authorities, following an examination of the legal, formal and substantive aspects of the case and of any statements presented by the party concerned; (2) the administrative proceedings confirmed that the accused had been responsible for serious violation of the principle of administrative fairness by virtue of having sought access to information held on a computer without the authorization of the official responsible for administrative proceedings in another case, in order to review witness statements and those of one of the parties; (3) the Santiago Appeals Court considered that “the request for protection lodged by the appellant claims that the disciplinary measure of dismissal was illegal and arbitrary, despite the fact that it followed administrative proceedings that respected legal standards and allowed the individual in question the benefit of due process of law, and the competent authority’s ruling cannot therefore be deemed to be illegal or arbitrary; the constitutional guarantee invoked by the appellant was therefore not violated”; (4) the official in question has applied to the 19th Civil Court of Santiago for a ruling that the administrative proceedings against him are null and void, thus overturning the dismissal order and ordering his reinstatement; the case is still pending and no judicial ruling has been handed down.
3. 581. The Committee regrets that neither the complainant organization nor the Government have communicated the administrative decision to dismiss the official, along with its operative part.
4. 582. Whatever the case may be, the Committee, noting that the union official in question has lodged a new appeal with the 19th Civil Court of Santiago, seeking a ruling overturning the administrative proceedings against him and ordering his reinstatement, requests the Government to keep it informed in this regard and to communicate any ruling handed down.

The Committee's recommendations

1. 583. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendation:
   • Noting that the union official Bernardo Hernández de la Fuente has lodged a new appeal with the 19th Civil Court of Santiago, seeking a ruling overturning the administrative proceedings against him and ordering his reinstatement, the Committee requests the Government to keep it informed of developments and communicate to it any ruling handed down.