The present case is noteworthy because it makes the sexual harassment investigation procedure applicable to all those persons who, in one way or another, have some kind of relationship with an employer.
On June 14, the Court of Appeals of Puerto Montt (Court Case No. 311-2022) upheld an appeal for annulment filed by the Labor Inspectorate against the final judgment that had upheld a legal claim filed by a company against two fines issued by the Labor Inspectorate.
This was due to the finding of alleged violations to the labor legislation as a result of a complaint and subsequent investigation for an alleged sexual harassment suffered by a trainee student who was in that company.
Regarding the fines, the first one was applied for the employer’s failure to comply with the provisions of its own Internal Regulations on Order, Hygiene and Safety, given that the company had initiated a sexual harassment investigation procedure without having a written complaint duly signed by the internship student concerned.
In this way, the facts were made known by the employee himself, who had informed his employer about a complaint that the affected student had filed against him before the Carabineros.
On the other hand, the second fine was related to the fact that the company, after having completed the sexual harassment investigation procedure, had not sent to the Labor Inspectorate the records of the internal investigation within five days after its conclusion, but well after that period.
In this context, the labor court that initially heard the legal claim filed by the employer with respect to both fines endorsed the company’s arguments, ruling that the Labor Inspectorate, at the time of issuing the first fine, had committed an error, since the investigation conducted by the company had been carried out in compliance with the legal obligation to protect the life and health of its workers, as mandated by Article 184 of the Labor Code, but not as part of the sexual harassment procedure established in its own Internal Regulations.
Thus, the sentencing judge held that according to said regulation, this contained a definition similar to the concept given by Article 2 of the Labor Code regarding sexual harassment, so that in both cases the factual premise was the existence of an employment relationship, which was not the case of a trainee student, since she was excluded from having an employment relationship with the company according to the provisions of Article 8 of the same code.
As for the second fine imposed for the company’s failure to send the conclusions of the sexual harassment investigation within 5 days of its conclusion, the labor judge held that it should also be annulled because the Labor Inspectorate had made an error of law, since it was a voluntary investigation carried out by the employer, and therefore did not fall under the legal regulation provided for this purpose by the Labor Code, The report with the conclusions of the investigation was sent by the company to the Labor Inspectorate only for purposes of record and information, but without ever having the purpose of complying with the legal regulations.
Subsequently, analyzing the arguments put forward by the Labor Inspectorate in its appeal for annulment, the Court of Appeals of Puerto Montt held that the final judgment challenged by the Labor Inspectorate was in fact erroneous, so that the judgment should be invalidated and, consequently, the respective replacement judgment should be issued, arguing with regard to the first fine: “The auditor has not committed an error of fact by imputing non-compliance with the Internal Regulations that establish the procedure for the investigation and punishment of sexual harassment, in this case of a student in practice. In fact, the legislator in no rule has expressly excluded from the application of the rules of sexual harassment to persons who do not have an employment relationship“.
It continues: “Article 8, paragraph 3 of the Labor Code provides that the services provided by a trainee student for a specific period of time in order to comply with a professional practice do not give rise to an employment contract, but this does not mean that these persons are excluded from all the rights enshrined in labor legislation, especially in the event of sexual harassment, since the same provision grants the trainee student the right to be provided by the company with meals and transportation, or a compensatory allowance for such benefits“.
“The DT has interpreted article 2, paragraph 2 of the Labor Code in relation to articles 211-A and following of the same legal body, in relation to the applicability of the procedure for the investigation and punishment of sexual harassment of trainees (…) which on the point at hand indicates that when faced with a request from a trainee student who claims to have been a victim of sexual harassment by an employee of the company, the procedural norms incorporated (…) by Law 20. 005 on sexual harassment, and the employer in charge of the management of the company where the conduct of sexual harassment has been verified must be required to comply with the obligations imposed by said law”, the Court of Appeals affirmed.
As for the second fine, the Court held that it was also correctly imposed because “it was proven that the internal investigation for sexual harassment was not sent to the Labor Inspectorate within five days of its conclusion, so that there was no error of law in imposing this fine” it concluded.
In short, the present case is noteworthy because it makes the sexual harassment investigation procedure established in the Labor Code applicable to all those persons who, in one way or another, have some kind of relationship with an employer, regardless of whether or not they maintain an employment relationship with the employer in formal terms.
For more information on these topics, please contact our #azLabor group:
Jorge Arredondo | Partner | jarredondo@az.cl
Jocelyn Aros | Senior Associate | jaros@az.cl
Felipe Neira | Associate | fneira@az.cl
