Definitive Report - Report No 387, October 2018

Case No 3190 (Peru) - Complaint date: 01-OCT-15 - Closed

Allegations: The complainant organization alleges the anti-union dismissal of a trade union official by a state-owned enterprise

1. 599. The complaint is contained in a communication from the Confederation of Workers of Peru (CTP) dated 1 October 2015.
2. 600. The Government provided its observations in communications dated 16 January 2017, 14 February 2017 and 24 July 2018.
3. 601. Peru has ratified the Freedom of 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. Complainant’s allegations

1. 602. In its communication dated 1 October 2015, the CTP alleges that, on 18 September 2015, the state editorial company of Peru (hereinafter “the company”) dismissed Mr Juvenal Fernando Barrientos Mendoza, who was the General Secretary of the Graphic Federation of Peru (FGP). According to the complainant organization, the company dismissed Mr Barrientos on account of his union activities.
2. 603. The complainant organization indicates that Mr Barrientos was dismissed after having made a complaint to the human resources department of the company on 7 August 2015 regarding misconduct by the company’s marketing manager. In the complaint, Mr Barrientos indicates that the marketing manager made disrespectful and sarcastic comments about his line manager, Ms Luzmila Mendoza Baldoceda, on 6 August 2015 when they were both off company premises during their lunch break.
3. 604. According to the complainant organization, the complaint made by Mr Barrientos falls under his trade union duties of oversight and consequently his dismissal constitutes a violation of freedom of association. The complainant organization encloses with its complaint a copy of Mr Barrientos’ letter of dismissal in which the company justifies its decision, alleging that the complaint made by the worker is false and defamatory and that it constitutes inappropriate conduct, equivalent to serious misconduct, which affects the working environment and internal order of the company.

B. The Government’s reply

1. 605. In its various communications, the Government transmits its observations and those of the company concerned. The company indicates that Mr Barrientos was dismissed in his capacity as a worker, and not owing to his role as General Secretary of the FGP. The company adds that Mr Barrientos filed a request for reinstatement citing unfair dismissal and that, pursuant to an interim decision of the First Permanent Specialized Labour Court of Lima dated 4 March 2016 (Decision No. 56-2016-1 JETP), Mr Barrientos returned to his previous position in the company on 13 April 2016.
2. 606. The Government indicates that, on 31 October 2016, the Third Labour Chamber of Lima upheld the interim decision of 4 March 2016 and declared Mr Barrientos’ complaint well founded. The Government includes a copy of the court’s ruling in which it is indicated that Mr Barrientos’ dismissal was unfair and without just cause. The second instance court: (i) considered that all the actions reported by Mr Barrientos had indeed taken place and could not be considered to be untrue; (ii) determined that the complaint made by the worker fell within the exercise of his freedom of communication, as the allegations were not divulged to all workers but to departments that played different roles in the company organization; and (iii) found that there was evidence of malicious intent towards the integrity of labour relations in the dismissal of the complainant.
3. 607. The Government reports that the company subsequently lodged a cassation appeal, but the Second Standing Chamber of Constitutional and Social Law of the Supreme Court of Justice declared it inadmissible on 23 November 2017, in accordance with resolution No. 10 of the First Permanent Specialized Labour Court of Lima, a copy of which is enclosed by the Government.

C. The Committee’s conclusions

1. 608. The Committee observes that the present complaint alleges the anti-union dismissal of a union official in a state-owned enterprise on 18 September 2015. The Committee notes that, on the one hand, the complainant organization alleges that the dismissal of Mr Barrientos resulted from his carrying out his trade union duties of oversight; on the other hand, the company reports that Mr Barrientos’ dismissal was a result of serious disciplinary offences committed in his capacity as a worker and not in his role as General Secretary of the FGP.
2. 609. The Committee takes due note that, according to the Government, this case underwent all the normal national legal procedures for unfair dismissal, through which Mr Barrientos obtained an interim decision ordering his reinstatement in his original post on 13 April 2016. That decision was upheld in the second instance by the Third Labour Chamber of Lima, which declared the worker’s complaint well founded. The company subsequently lodged a cassation appeal, which was declared inadmissible by the Supreme Court of Justice on 23 November 2017. Observing that the dismissal in the present complaint has been permanently overturned by national courts and Mr Barrientos has been reinstated in his job, the Committee considers that this case does not call for further examination.

The Committee’s recommendation

1. 610. In the light of its foregoing conclusions, the Committee invites the Governing Body to decide that this case does not call for further examination.