Supreme Court upheld the dismissal of a worker who registered a labor meeting.
With the massification of new technologies in the labor field, new challenges have arisen in the relations and their impact on the compatibility of the rights of workers with the legitimate management powers of the employer. In addition, cases have already arisen with respect to the applicability of grounds for termination of the employment contract due to the use of devices within the companies.
The case we are commenting on this occasion deals with the hidden recording, without the authorization of the other participants, carried out by a professional of a company in the context of a work meeting, which addressed sensitive issues of relevance to the organization.
The meeting was attended by co-workers of the dismissed professional, as well as workers from another company, to discuss matters of great importance for the institution. Once this recording was investigated, the employee was dismissed for serious breach of the obligations imposed by the contract.
After hearing the lawsuit filed by the professional, the judge of first instance accepted it, however, the Court of Appeals revoked it, considering the recording as unlawful conduct without information of the intervening parties.
The employee filed an appeal for unification against this decision before the Supreme Court, which, hearing the case, rejected it, declaring the dismissal admissible and stating that the conduct carried out by the former employee could be framed as a criminal offense (Article 161 A of the Labor Code) since what was disclosed were not facts of public interest.
Likewise, and taking into account previous pronouncements, it makes a relevant distinction, stating that “the plaintiff, audit director of the parent company of the defendant company, attended a private meeting attended by executives of the same and of another company, to discuss a matter, recording the meeting without informing the other attendees, given his professional training, his professional career and the requirement of a different conduct in an average worker, given the involvement of third parties belonging to another company“.
It continues, “However, the pronouncement contained in the judgment that was accompanied is based on different reasoning, which established that there is no affirmation of the typicity for the case of the crime provided in article 161 A of the Criminal Code, when the disclosure of the recorded conversation is made by one of the interlocutors of it, or when facts of public interest captured by a means of social communication are revealed, such as those related to the exercise of a profession or trade“, declaring in consequence inadmissible the appeal attempted by the former worker and ratifying the corporate measure of dismissal.
This is an interesting pronouncement that defines the scope of this type of conduct and establishes a position as to the lawfulness of recordings of this type.
For more information on these topics, please contact our #azLabor group:
Jorge Arredondo | Partner | firstname.lastname@example.org
Jocelyn Aros | Senior Associate | email@example.com
Felipe Neira | Associate | firstname.lastname@example.org