Rapport définitif - Rapport No. 373, Octobre 2014

Cas no 2893 (El Salvador) - Date de la plainte: 24-JUIN -11 - Clos

Allegations: Action taken by the Mayor’s Office of Santa Ana regarding the dismissal of a union leader for her participation in a strike, and her prior suspension from work and of her pay

1. 266. The complaint is contained in a communication from the Autonomous Confederation of Salvadorian Workers (CATS) dated 24 June 2011.
2. 267. The Government sent its observations in communications dated 15 January and 16 October 2012 and 7 May 2014.
3. 268. El Salvador 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. 269. In a communication dated 24 June 2011, CATS alleges that the Mayor and the Council of the Municipality of Santa Ana, in the department of Santa Ana in El Salvador, were in violation of ILO Convention No. 87, in the case of Ms Karla Beatriz López Contreras, Secretary of the Organization and Statistician of the Executive Committee of the Union of Municipal Workers of Santa Ana (SITRAMSA).
2. 270. CATS explains that the problem began on 20 October 2010 when an indefinite strike took place, demanding higher salaries and the payment of the social security contributions that the municipality owed banks, the office of the Public Prosecutor, the Salvadorian Social Security Institute (ISSS) and pension fund administrators, due to the failure to pay to these institutions the deductions made.
3. 271. The Labour Court declared the strike illegal and, in order to prevent contract terminations for which the employer could not be held responsible, the workers agreed in their general assembly to return to work.
4. 272. CATS adds that, on 15 November 2010, by means of an administrative agreement, the Mayor suspended Ms Karla Beatriz López Contreras, Secretary of the Organization and statistician, from work without pay for going on strike and due to her union work.
5. 273. On 10 February 2011, representatives of the Municipal Council of Santa Ana filed a request in the Labour Court for authorization to dismiss Ms Karla Beatriz López Contreras under section 71 of the Municipal Administrative Careers Act, which is in violation of ILO Convention No. 87 and article 47 of the Constitution.
6. 274. On 14 February 2011, the Santa Ana Labour Court handed down its ruling, ordering the Municipal Council of Santa Ana to reinstate Ms Karla Beatriz López Contreras to her post of computer operator and to pay her the wages which had been stopped on 16 November 2010, when she had been suspended from work.
7. 275. The Municipal Council did not comply with the ruling of the Labour Court and lodged an appeal with the First Labour Chamber, which on 31 March 2011, set aside the ruling for procedural reasons, which meant that the Santa Ana Labour Court had to begin the process again and issue a new ruling.

B. The Government’s reply

1. 276. In a communication dated 15 January 2012, the Government declares, with regard to the allegations made by CATS concerning what the Government describes as the dismissal of Ms Karla Beatriz López Contreras, that, on 17 November 2010, the Municipal Council of Santa Ana filed a request with the Labour Court of Santa Ana to dismiss Ms Karla Beatriz López Contreras, alleging suspected dereliction of duty to participate in a strike called in the municipality during the week of 19–23 October 2010, and for not obeying the order by the authorities to return to work within the period indicated by administrative order, as the strike had been declared illegal. It also accused her of action that seriously endangered the physical safety of another municipal official.
2. 277. In accordance with the legal procedure, the Labour Court of Santa Ana issued a ruling on 10 February 2011, declaring the dismissal of Ms Karla Beatriz López Contreras unlawful and ordering the municipal authorities of Santa Ana to reinstate her in her job, and to pay her the wages that she had not received for reasons attributable to her employer, from the date that she was suspended from work (a copy of the ruling is attached). Subsequently, the general legal representatives of the municipal authorities of Santa Ana appealed to the First Labour Chamber of San Salvador to review the ruling which, on 31 March 2011, set aside the ruling, with all legal consequences, from the time of the notification of the opening of the investigation. Following this ruling, a representative of the Municipal Council of Santa Ana filed an appeal against the ruling of the Santa Ana Labour Court regarding the authorization to dismiss Ms Karla Beatriz López Contreras. On 29 June 2011, the First Labour Chamber of San Salvador found the appeal unreceivable as it was without merit.
3. 278. In a communication dated 16 October 2012, the Government indicates that, on 29 November 2011, after reviewing the evidence, the Labour Court of Santa Ana issued a final ruling, which found the authorization to dismiss Ms Karla Beatriz López Contreras unlawful and ordered the Municipal Council of Santa Ana to reinstate her in her position and pay her the wages owed since 16 November 2010. In view of the above, as the Municipal Council objected to the ruling, it appealed for the decision to be reversed in accordance with section 78 of the Municipal Administrative Careers Act, but the appeal was not successful as the ruling was found to have been made in accordance with the law.
4. 279. In a communication dated 7 May 2014, the Government reports that the Santa Ana municipal authorities informed it that it implemented the ruling handed down by the First Labour Chamber of the city of San Salvador, reinstating Ms Karla Beatriz López Contreras as of 24 January 2012, in her post as computer operator in the Engineering Department of the Mayor’s Office of Santa Ana, and paying her the wages that she had not received since her dismissal.

C. The Committee’s conclusions

1. 280. The Committee observes that, in the present complaint, the complainant alleges that, following a decision by the Mayor’s Office and Municipal Council of Santa Ana, union leader Ms Karla Beatriz López Contreras was suspended from her job without pay on 15 November 2010 for participating in a strike calling for higher wages and other claims, and that those authorities requested authorization from the judicial authorities, to dismiss her. The Committee also observes that, according to the complaint and the Government’s reply, three separate appeals were made by the Municipal Council against the ruling of the first-level court ordering the reinstatement of the union leader and the payment of her outstanding wages (February 2011), the final ruling dated 29 November 2011, confirmed the reinstatement and the payment of the wages due since she had been suspended from work (November 2010). The Committee observes that in its latest reply the Government confirms that the final ruling has been given effect by the Mayor’s Office as of 24 January 2013.
2. 281. Even though the Committee observes that the case of Ms Karla Beatriz López Contreras has been resolved, it deeply regrets that, while she was suspended from work without pay in November 2010, the final ruling was issued on 24 January 2012, which is more than one year after her suspension. The Committee therefore regrets the negative consequences of this situation on the union leader who was suspended from work without pay for a long period of time. It also emphasizes the principle that justice delayed is justice denied [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 105]. The Committee requests the Government, in consultation with the most representative workers’ and employers’ organizations, to consider measures to speed up the operations of its legal system in cases involving alleged acts of anti-union discrimination.

The Committee’s recommendation

1. 282. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendation:
   • While observing that the situation of the union leader who had been suspended from work without pay since November 2010 has been resolved, the Committee emphasizes the principle that justice delayed is justice denied and requests the Government, in consultation with the most representative workers’ and employers’ organizations, to consider measures to speed up the operation of its legal system in cases involving alleged acts of anti-union discrimination.