Effect given to the recommendations of the committee and the Governing Body - Report No 318, November 1999

Case No 1966 (Costa Rica) - Complaint date: 11-MAY-98 - Closed

Effect given to the recommendations of the Committee and the Governing Body

1. 43. In its last examination of the case in June 1999, the Committee made the following recommendations on the allegations that had remained pending (see 316th Report, paras. 53-55):
2. The Committee requests the Government to keep it informed of the outcome of the instructions given to the administrative authorities with a view to finding a solution and achieving the reinstatement of the dismissed persons (by the FERTICA SA ENTERPRISE) and expresses the hope that these reinstatements will be made in the very near future.
3. The Committee requests the Government to study the possibility of amending legislation so that once an inquiry concludes that acts of anti-union discrimination have occurred, the effects of such acts shall be declared null and void at least until the judicial authorities have ruled on the matter.
4. The Committee also requests the Government to carry out an inquiry into the alleged promotion by the enterprise of an executive board parallel to that of the Association of Workers of FERTICA SA (AFTe) and to keep it informed of the inquiry into the promotion by the enterprise of a new trade union (SITRAFER).
5. 44. In its communication of 27 August 1999, the Government states that it has instructed the competent authorities to comply with all the Committee's conclusions and recommendations, taking into account a court ruling barring the actions which were the subject of the complaint by lapse of time, that ruling was upheld following an appeal from the Ministry of Labour. The Government describes the conciliation proceedings that have been initiated.
6. 45. The Government adds that with regard to legislation, it has brought draft legislation before the Legislature with a view to amending certain provisions of the Labour Code in the spirit of the Committee's recommendations. On 16 March 1999, the legislation in question received the unanimous endorsement of the Legislature's Standing Committee on Legal Affairs and is now being examined in a national consultation process. Its purpose is to introduce greater speed and flexibility into the administrative procedures and mechanisms provided for in the Labour Code and is in keeping with the comments made in previous years by the Committee of Experts. The text of the proposed amendments is as follows:
7. ...
8. Section 367bis. It shall be absolutely prohibited for employers to dismiss the workers referred to in section 367 except on grounds related to a serious failure to fulfil obligations arising from the contract of employment, in accordance with the reasons established in the present Code.
9. In such cases, the employer shall be obliged to follow a formal procedure before dismissal to demonstrate the existence of the reasons given for the dismissal. The procedure in question shall be such as to ensure in all cases that due process is observed for the protected worker in question, that any evidence from witnesses or documents submitted by the worker is properly examined, and that the worker shall have access to the file and the right to be assisted by a trained legal specialist or other designated representative. If the worker so requests, the labour inspector of the relevant jurisdiction shall also be allowed to participate in the proceedings.
10. In cases in which the employer, having followed the due procedure, proceeds with the dismissal, the worker concerned shall be entitled to apply to a labour court of the appropriate jurisdiction for summary proceedings to review the decision, verify the existence of the reasons given for the dismissal based on the evidence obtained and ensure that said reason is recorded in the file presented by the employer.
11. The competent judge shall within 48 hours of receiving the worker's application grant a hearing to the respondent in order that it may within three days submit a certified copy of the file. Upon expiry of this period, if the employer has not submitted the required documents, or if these documents do not confirm the reasons given for the dismissal, or if the established procedure has not been followed, the judge shall without any further formality order the immediate reinstatement of the worker with full rights. In all cases, any ruling in these proceedings shall be based solely on the case presented by the employer and given within a period of not more than ten days of receiving the application by the dismissed worker.
12. When a ruling is given in favour of reinstatement, it shall be enforced by the judge within 24 hours of the ruling. An employer or employer's representative who refuses to implement a reinstatement order shall be required to pay a sum equivalent to one day's wages to each worker concerned for every calender day during which it fails to comply with the order. Failure to reinstate shall also be deemed to be an offence subject to a fine under section 614, paragraph 6 of the present Code.
13. During the course of the proceedings, no type of interlocutory challenge shall be admissible and ruling shall be subject to appeal only in the Higher Labour Court, which shall give a ruling within a period of 48 hours. Once a definitive ruling is handed down it shall have the character of a formal matter adjudged.
14. Section 368. Workers covered by the present law shall not be liable to dismissal without reason as provided for under the Labour Code. The competent labour judge shall declare null and void such a dismissal where there is no just cause for the dismissal in accordance with the present Code, or in the case of non-compliance with the procedure established under the previous section and shall order the reinstatement of the worker and payment of wage arrears, in addition to any sanctions to which the employer may be liable under the terms of the present Code and its supplementing and associated enactments. If the worker expressly indicates the desire not to be reinstated, he or she shall be paid compensation furthermore to the labour rights corresponding to a dismissal without reason equivalent to the wages which would have been paid during the period in which protection under the terms of section 367 was not provided.
15. 46. The Committee notes with satisfaction the proposed amendments of the Labour Code submitted to the Legislative Assembly following tripartite consultations. The Committee hopes that the amendments will be adopted in the very near future and requests the Government to keep it informed in this regard.
16. 47. As regards the other pending recommendations, the Committee takes note of the fact that the judicial authorities have ruled that the actions of FERTICA SA were barred by lapse of time. It also notes the instructions issued by the Government to the competent authorities to carry out the necessary investigations and comply with the Committee's recommendations. Under these circumstances, the Committee reiterates the conclusions and recommendations which it made in June 1999 and hopes that at its next meeting it will see conclusive results in all the matters still pending.