It was established that under the freedom of association, false or slanderous accusations against the employer are not tolerated.
The scope of union privilege is undoubtedly a matter of constant discussion. In this context, it is interesting to know how the jurisprudence of other countries deals with this situation, and to determine whether such criteria can be extrapolated to our reality in similar cases.
In this opportunity, we will refer to a case processed before the Second Constitutional and Social Transitory Chamber of the Supreme Court of Peru (Labor Cassation No. 9382-2022), which rejected a lawsuit for null dismissal filed by a worker and -at the same time- union leader against his employer, for having been dismissed after having declared in a media that both his employer and its representatives, as well as public officials, had incurred in a series of acts constituting crimes.
The origin of this conflict was based on the lawsuit filed by an employee of a company, who alleged that his dismissal was null and void due to his status as a union leader and that, therefore, he should be reinstated to his job, in addition to being paid the remuneration he had not received during the time he was separated from his duties, arguing that the statements made by him in an interview given to a television channel had been made in his capacity as a union leader and as representative of the workers of the company.
However, the Supreme Court of the aforementioned country disagreed with the statement made by the plaintiff, stating -first of all- that “Within the labor relationship, mutual respect between the parties is fundamental for its continuity, thus we have that when the employer or his representatives perform acts that offend the dignity of the worker, the latter may resort to the Judicial Power demanding the cessation of such acts or declare himself indirectly dismissed (…) / Similarly, when it is the worker who offends the dignity of his employer or his representatives, the company or institution where he works may sanction him according to the severity and intensity of the insults or irreverent phrases as well as the insults or irreverent phrases. ) / Likewise, when it is the worker who offends the dignity of his employer or his representatives, the company or institution where he works can sanction him according to the seriousness and intensity of the insults or irreverent phrases as well as the dissemination of the same, for which it will use its disciplinary power (…)”. )“ Thus, the Court held that in the case of a union leader, although he was protected by the respective labor privilege (union privilege) ”such protection cannot be extended to the case when the leaders incur in verbal or written misconduct (sic) against the employer or its representatives, since admitting such a situation would imply encouraging acts of indiscipline within the institutions and companies, as well as protecting the abuse of the law (….). ) / In conclusion, this Supreme Chamber considers that union leaders can be dismissed if it is proven in court that they have incurred in a just cause for dismissal (…)”.
Consequently, considering that the plaintiff worker had not been able to prove evidence that, at least, his dismissal was due to his condition as a union leader, while the employer – on the other hand – did provide sufficient evidence that the dismissal was due to the commission of a serious misconduct by the worker in having accused, on a television channel, the representatives of the company and public officials of the labor inspection authority of acts constituting a crime, the representatives of the company and public officials of the labor inspection authority of acts constituting a crime, even uttering insulting and humiliating expressions that hurt their dignity, it was decided that “the decision to dismiss the plaintiff was not as a consequence of his condition as a union leader but due to the commission of a serious labor misconduct (…)” considering, therefore, that “the dismissal of the plaintiff was not due to his condition as a union leader but due to the commission of a serious labor misconduct (…)”. )” considering, therefore, that his dismissal was in accordance with the law.
Well, this judgment is interesting in that it makes an analysis and establishes a kind of dividing line as to the statements that a worker may make in his role as a union leader and, therefore, as a representative of the workers, or if such statements are made by him in his personal capacity and only as a worker, clearly establishing that under the freedom of association, false or slanderous accusations against the employer are not tolerated.
For more information on these issues, please contact our Labor Group:
Jorge Arredondo | Partner | jarredondo@az.cl
Jocelyn Aros | Director Labor Group | jaros@az.cl
Felipe Neira | Senior Associate | fneira@az.cl
Palmira Valdivia | Associate | pvaldivia@az.cl
Manuel Sepúlveda | Associate | msepulveda@az.cl
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