This is a relevant criterion regarding the enforcement of the employer’s investigative powers in the context of the so-called “Karin Law”.
Last November 11, the Court of Appeals of Santiago (Court Entry No. 2745-2023), accepted an appeal for annulment filed by an employer against the final judgment issued by a labor judge who had previously declared the dismissal of an employee unjustified since the alleged cause of sexual harassment had not been proven.
The conflict arose as a result of an activity self-organized by six workers of the company, who on the occasion of the celebration of the “secret friend”, met in a bar, after their working day, all this with a recreational purpose and to share with each other.
In this context, one of those involved (who, moreover, was the boss of the rest of the workers), began to engage in behaviors constituting sexual harassment with a female worker who was at the meeting.
These behaviors were evident suggestions of a sexual nature and generated in the affected employee a manifest discomfort, as well as anger and frustration.
Thus, after suffering this episode, the affected person reported to the company the fact of having been a victim of sexual harassment by his boss, who after a process of internal investigation ended up being dismissed for this reason.
However, disagreeing with this decision, the dismissed employee decided to sue before a Labor Court, in which the judge decided to uphold the decision, holding that his dismissal had been unjustified because “the conduct of the plaintiff, consisting of inappropriately approaching the victim and touching her leg, would not constitute sexual harassment”.
This under the argument “because it is an event that occurred in a celebration outside the workplace, with respect to which the employer did not have any type of interference or requirement in its organization and direction, and that the conduct did not threaten or harm the victim’s work situation or employment opportunities”.
However, the Court of Appeals of Santiago, hearing the case, disagreed with this reasoning and, directly, qualified it as erroneous, stating in this regard that:
“The judge of the instance sustains that this action must occur in a work space, an argument that is erroneous if applied in an absolute manner, understanding that such events must occur exclusively on company premises, since the protection against situations of harassment or harassment at work and of a sexual nature, must be extended to spaces where the victim’s employment opportunities are not available”.
It continues “on purpose, as it happens in this case, so that (…) the social gathering is framed within a recreational meeting of coworkers, on the occasion of the end of the year holidays, in a ‘secret friend’ activity, to which the complainant was invited (…) on the occasion of being part of that work team”.
“This precludes arguing that it takes place within the private sphere of individuals, since it is insisted that it is, in short, a meeting generated in connection with the work relationship and on the occasion of it, which allows concluding, contrary to what was held by the basic judge, that it is a situation that must be protected”, concludes the court.
In short, this ruling of the Court of Appeals is absolutely relevant, since it understands that the possibility of a situation constituting harassment or sexual harassment must be analyzed in terms of the scenarios of a work context.
In this way, the protection framework is extended and the employer must protect its workers, regardless of whether they occur during the working day or in the company’s premises. This extends to situations that are generated by reason, cause or occasion of the employment relationship.
In conclusion, a relevant criterion is also established with respect to the execution of the employer’s investigative powers in the context of the “Karin Law”.
For more information on these topics, please contact our Labor Group:
Jorge Arredondo | Partner | jarredondo@az.cl
Jocelyn Aros | Senior Associate | jaros@az.cl
Felipe Neira | Senior Associate | fneira@az.cl
Palmira Valdivia | Associate | pvaldivia@az.cl
Catalina Díaz | Attorney | cdiazp@az.cl
Be part of our multimedia platform and you can receive the latest legal news, events, podcazt and webinars.
