With the massification of teleworking there have been a number of controversies regarding the limits of the powers of the employer and the rights of the worker who provides services in a delocalized way.
In this context, the present case deals with the power of the employer to provide a work tool such as a webcam and the possibility of requiring the worker to keep it turned on and permanently focused on the activity performed by the employee.
The case (case RIT T-518-2022 of the 2nd Labor Court of Santiago), had its origin in a complaint by means of which a worker claims against a series of acts that he considers as violations of his right to physical and psychological integrity. Thus, he points out as violations the fact that his legal holiday period had been reduced; the internal attendance registration system had been modified to eliminate the registration of days he actually worked and the fact that the employer would oblige him to register every time he used the restroom.
Once the trial had begun, the employee presented new information, especially the fact that the employer had sent him a document that explains the way in which remote work must be performed and that he was given a work tool (webcam) which he had been instructed to keep constantly turned on and focused on him.
Resolving this controversy, the judge of the instance establishes as a basis that the employer recognizes that he delivered a camera to the worker to perform his functions, and “that the defendant does not indicate how the aforementioned camera would fulfill the functions of work tool, nor does it indicate the limits both of the circumstances in which it is to be used or the schedule in which the aforementioned camera is to be working”.
It continues, “Therefore, the defendant does not provide elements that justify the measure adopted with respect to the plaintiff worker specifically and even with respect to other workers […] therefore, by not proving the justification of the measure or its limits, which would even be in contradiction with the administrative jurisprudence of the Directorate of Labor, for example, in opinion 2328/130 of 2002 and in opinion 3125 of 2018, this Court considers that the precautionary measure requested by the plaintiff has sufficient grounds to be decreed”.
Thus, the Court decrees the temporary separation of the worker from his functions, without affecting his remunerations, and maintaining the right to receive 100% of these, sending the background to the Labor Directorate (DT) to carry out an audit.
It is therefore an interesting pronouncement that stands out because the labor relationship is in force, and the judge orders a series of measures to paralyze the act that violates a fundamental right, without prejudice to the fact that the merits of the case are still pending to be resolved.
For more information on these topics, please contact:
Jorge Arredondo | Partner | jarredondo@az.cl
Jocelyn Aros | Senior Associate | jaros@az.cl
Felipe Neira | Associate | fneira@az.cl
Rodrigo Serrano | Associate | rserrano@az.cl