Definitive Report - Report No 351, November 2008

Case No 2604 (Costa Rica) - Complaint date: 04-OCT-07 - Closed

Allegations: Opening of disciplinary proceedings against two trade union officials for matters related to the use of trade union leave and refusal of the authorities to maintain the trade union leave of a trade union official on the same terms as previously enjoyed

1. 672. The complaints are contained in communications of the National Medical Union (UMN) and the General Confederation of Workers (CGT) dated 3 and 4 October 2007, respectively. The Government sent its observations in communications dated 12 February and 8 May 2008.
2. 673. Costa Rica has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), and also the Workers’ Representatives Convention, 1971 (No. 135).

A. The complainants’ allegations

1. 674. In its communication dated 3 October 2007, the UMN alleges that it is clearly established in its by-laws that the executive board shall be composed of 11 members. As it is a national trade union which is devoted in general terms to the examination and solution of the socio-economic problems of the entire national medical profession, it is clear, therefore, that its executive board should include representatives of the principal institutions which employ doctors in Costa Rica, as is the case of the Costa Rican Social Security Fund, the Ministry of Health and the National Insurance Institute (INS).
2. 675. On 30 January 2007, the Executive President of the INS was informed of the result of the election to the executive board of the UMN on 12 January 2007 in which Dr Sonia Román González, a staff member of the INS, was re-elected as organization and trade union affairs secretary of the UMN. The basic purpose of that communication was to request the Executive President of the INS to grant leave with pay to Dr Sonia Román González from 1 March 2007 to 28 February 2009 on Wednesday each week from 7 a.m. to 4 p.m. and if that day was a holiday, the meeting would take place on the previous day.
3. 676. It should be emphasized that Dr Sonia Román González has held the post of organization and trade union affairs secretary of the UMN since 1 February 1996, i.e. for 11 years, and that she is the only doctor who currently holds a position in the national executive board of the UMN. Furthermore, never before had any Executive President or any other official of the INS refused leave to Dr Sonia Román González to participate freely in meetings of the executive board on Wednesdays from 7 a.m. to 4 p.m.
4. 677. The position of organization and trade union affairs secretary, like the rest, is extremely important for the proper functioning, efficiency and achievement of the objectives set out in the statutes of the trade union. Indeed, article 34bis of the statutes provides that the secretary’s functions are as follows:
5. Article 34bis. The functions of the organization and trade union affairs secretary are as follows:
6. (a) To attend promptly meetings of the executive board and the general assembly.
7. (b) To prepare at the request of the executive board annual organizational plans for its functions and those of the organs of the Medical Union generally.
8. (c) To coordinate relations and serve as a link between the executive board and the branch executive committees, attending meetings of the latter when so requested.
9. (d) To prepare an annual plan of visits to the respective branch committees.
10. (e) To coordinate relations and, if necessary, joint plans of the Medical Union with other organizations.
11. (f) To coordinate activities between the executive board of the Medical Union and the College of Physicians and Surgeons in drawing up plans and carrying out activities designed to improve the socio-economic conditions of health professionals.
12. (g) To prepare in conjunction with the information and publications secretary and the education and training secretary plans for trade union actions, for submission to the executive board for approval.
13. 678. The UMN adds that it is an arbitrary, absurd, illegal, discriminatory act in contravention of the enshrined rights of gender equality, the right to organize and access to executive office or representation of trade unions, in response to which the INS Executive President replied in the following terms:
14. ... With reference to your letter, reference above, requesting leave with pay for two years to allow Doctor Sonia Román to attend meetings, once a week all day, as organization and trade union affairs secretary of that trade union, I have to inform you that it is not possible to agree to this request.
15. The work of doctors in our INS-Salud Medical Complex is essential in strengthening the INS and improving the service to patients, for which reason it is not feasible to do without the services of Doctor Román ...
16. 679. Despite the foregoing and in an act of good faith by the UMN, the Executive President of the INS was asked for a meeting to discuss the leave in question. The INS president writes as follows:
17. ... this office would be agreeable to allowing Doctor Sonia Román leave to attend meetings of your executive board from 3 p.m., bearing in mind that meetings of the executive board of the National Insurance Institute take place from 4 p.m. once a week, a framework which it seems reasonable to apply in a situation such as the one here.
18. 680. The UMN replied on 27 March 2007 that the argument put forward was fallacious and that it considered it to be a mark of disrespect of the union, since it only allowed Dr Román to participate in one hour of the meetings of the executive board. It seriously prejudiced the execution, decision, resolution and conduct of the highly sensitive matters addressed by the union.
19. 681. The fact of the matter is that here too we are faced with an evident and manifestly discriminatory act against gender equality, since as Dr Sonia Román González is the only female doctor on the executive board, her participation was now totally impaired. The UMN considers that this is a violation of the ILO Conventions on freedom of association ratified by Costa Rica.
20. 682. In its communication of 4 October 2007, the CGT of Costa Rica alleges that the office of the General Secretary of the CGT has been occupied since its foundation by Mr Luis Alberto Salas Sarkís, General Secretary of the National Insurance Institute Staff Union (UPINS), which is a trade union with 1,200 members. The CGT adds that UPINS has not given up the direct challenge to the authorities of the INS and the Government of the day, which since 2006 has headed the move against the opening up of the insurance monopoly, approval of the Insurance Market Regulation Act, and more recently against the approval of the Free Trade Agreement with the United States and Central America and its implementation agenda.
21. 683. This clear position of UPINS against the opening up of the insurance monopoly has led its executive and especially its General Secretary, Mr Luis Salas Sarkís, to denounce constantly the measures taken by the president of the INS executive board and the general manager who, in the last two years, have used the press, especially the newspaper La Nación, which is one of the most widely circulated nationally, to attack the trade union and especially the General Secretary. Finally, the trade union again denounced the INS administration for the possible use of public funds to encourage a “yes” to the Free Trade Agreement with the United States in a referendum of the Agreement to be held on 7 October, a complaint which is currently before the INS audit department and the Supreme Election Tribunal.
22. 684. It is essential that the Committee on Freedom of Association should know the background to the INS strategy against the union. The facts reported below, the complainant continues, are a violation of ILO Conventions Nos 87 and 98, although it is claimed that they should be seen as mere disciplinary proceedings involving the dismissal of two members of the UPINS executive, one of them the General Secretary.
23. 685. The CGT explains that the current collective agreement governs dismissals for engaging in trade union activities. The articles relevant to the present case are the following:
24. Article 2(a). The interpretation of this agreement, as indicated in article 180(c) shall be formulated in writing and the parties shall undertake to process it and reply within a maximum of 15 working days.
25. When agreement is reached on these matters, a copy shall be sent to the Ministry of Labour for legal effect.
26. In the absence of an agreement, mandatory conciliation shall be convened in the Ministry of Labour which shall act as conciliator.
27. Article 3. The parties shall include in this agreement, to the extent applicable, all the provisions contained in the Labour Code and related laws, and Conventions of the International Labour Organization duly ratified by Costa Rica, and the benefits not contrary to public order currently enjoyed by employees of the Institute under labour or administrative practices recognized in the institutional framework.
28. Article 171. For the purposes of its trade union management, the Institute shall grant the trade union the following leave with pay:
29. (a) To allow a worker in each agency or fire-fighting unit located outside the Central Valley to attend all general assemblies of the union, giving notice to the respective management at least two weeks in advance, with a maximum of two assemblies per year.
30. (b) To allow representation of workers belonging to the union who work in the branches of the Institute in the Central Valley, not more than 10 per cent of the workforce in the branch concerned, to attend all general assemblies convened by UPINS from 3 p.m., with a maximum of two assemblies per year.
31. (c) To allow members of the executive board to attend ordinary meetings, once a week, from 12 noon. When more than one member of the UPINS executive board works in the same branch, this leave may not be used simultaneously, but on different days, except as agreed between the parties.
32. (d) One day each week to allow one of the members of the UPINS executive board to carry out trade union work, for which purpose the union must inform the corresponding branch management two days in advance.
33. (e) Full-time leave during the period for which they were elected for three members of the executive board when they are administrative staff.
34. Article 172. The Institute shall grant annually 150 working days leave, in total, to allow workers designated by the UPINS executive board, to engage in studies of trade union interest, seminars or similar activities.
35. For the purposes of this leave, the terms of this collective agreement on the grant of leave with pay shall apply. UPINS must provide the management of the Institute with information on the studies to be carried out, for decision by the competent organ. The benefit contemplated in this article may be extended to the interests of the Institution. When the circumstances justify, the management may grant leave with pay to members of the UPINS executive board, based on the terms of this agreement.
36. Article 173. The Institute shall allow the holding of meetings and visits of trade union representatives to the various workplaces and shall provide them with facilitates to assist them in their functions provided that this does not interfere with the work and activity of the institution.
37. 686. The CGT indicates that the collective agreement does not have conciliation, mediation and arbitration or regulatory mechanisms for the grant of trade union leave which establish specific voluntary or compulsory procedures, for complaints of any inconsistency or alleged irregularity in the grant of such leave, thus the only rules which govern the procedure are those contemplated in the aforementioned articles.
38. 687. The only provision related to the interpretation and application of the collective agreement is found in paragraph (c) of article 180 related to the functions of the bipartite body, the Labour Relations Advisory Board. It states as follows:
39. Article 180. The functions of the labour relations advisory board, in addition to those set out in other articles of this agreement, are as follows:
40. (a) To recommend conciliatory solutions in individual or collective problems that arise between the Institute and its workers.
41. (b) To hear and decide on labour questions which the Institute or the union submit to it such as:
42. 1. Dismissals.
43. 2. Appointments, promotions, exchanges, transfers of posts, etc. which may be in contravention of this agreement.
44. 3. All questions which by their nature may affect the good order of labour relations in the institution.
45. 4. Cases of administrative proceedings (raised by the human resources management), on conclusion of the investigation, shall be heard by the board, unless the worker does not so wish.
46. (c) To consider and make recommendations on matters related to the interpretation and application of this agreement, and to make such reports as may be requested in that regard, within a maximum of fifteen working days. In the absence of agreement as to interpretation of this agreement, the procedure to be followed subsequently shall be that set out in article 2(a) of this agreement.
47. (d) To provide an opportunity to submit new evidence, in defence of and discharge of the facts alleged against them, to workers affected by any labour matter.
48. 688. The CGT indicates that in a document with the title “The truth, a practice you don’t know, Mr Luis Salas”, on 27 September 2005, the education secretary of the UPINS executive board circulated publicly to all INS staff and management a request to the UPINS General Secretary concerning a series of matters related to the internal functioning of the union. Among the various points, the INS management stated:
49. ... 4. In relation to the information that I asked you for concerning trade union leave with pay granted to UPINS officials this year, it was abundantly clear that it was absolutely vital to find out what actually happened. Is it not true Mr Salas Sarkís that in a meeting of the executive board there was acceptance by a member of the executive board that you indeed provided him with this type of leave for activities external to the organization? Arguing that it was compensation for the personal and working time which that person had given to the organization, can you do this Mr Luis Salas? Would you by this action be in breach of the Internal Control Act? That is all I need to know to make a formal complaint, but I have not been able to do so because you refused to provide me with the requested information.
50. 689. In a letter, ref. UP-148-2005, of 25 October 2006, Mr Luis Salas replied to Mr Willy Montero Bermúdez (INS director), attaching a list of all leave requested. He indicates in this respect: “… with respect to the supporting documents, we enclose those which have been found, because very often those who attend an activity are given the invitation to inform them of the details of the event and they do not return them”.
51. 690. Under the umbrella of the so-called Internal Control Act, the INS management filed a complaint with the audit department of the INS. Under the Act, both the complainant and the content of the complaint are protected by the principle of confidentiality, thus the scope of the document is not known. However, in a letter ref. DA2016-2006 of 12 September 2006, the audit department investigated the complaint to determine “… whether Ms Alicia Vargas Obando used leave granted to her for activities of trade union nature and institutional interest for personal activities”. According to the first page of the final report of the INS audit department, the general objective of the study is “to provide the Administration with the necessary evidence to allow it, by an administrative proceeding, to determine the truth of the facts reported in the complaint concerning the apparent misuse of trade union leave under the umbrella of the collective agreement by Ms Alicia Vargas Obando”.
52. 691. During the investigation, the INS audit department obtained access to the minutes of the ordinary meetings of the UPINS and the immigration service records relating to the women’s secretary, Ms Alicia Vargas Obando, since without the express authorization of Ms Alicia Vargas Obando or any court order, representatives of the audit department requested the Directorate-General for Migration and Immigration for access to the certified register of entries and exits from the country. In addition, they had access to that official’s leave and holiday record, and concluded that Ms Alicia Vargas Obando was travelling in Nicaragua on the dates when she was given leave for trade union activities. As part of the investigation process, the audit department interviewed Mr Willy Montero Bermúdez and Ms Patricia Monge Rojas who on that date were UPINS officials. Both stated that Mr Luis Salas, as General Secretary of UPINS, was the person who granted trade union leave to the official, Ms Alicia Vargas Obando. They also said that she used the leave to travel to Nicaragua to visit a boyfriend.
53. 692. In a letter ref. AU-0867-2006 of 29 September 2006, the audit department requested Mr Luis Salas Sarkís, the General Secretary of UPINS, for information related to the minutes of the meeting of the executive board which dealt with trade union leave granted to members of the board, and to provide explanations of the procedure used to grant leave and the person responsible for granting it. In addition, he was asked for details of the documents in support of that leave such as invitations, programmes of activities, reports submitted to the General Secretary, etc., all, as it stated “in order to verify the proper use of that leave with pay”. As expressly indicated, at the date of the final audit report, the General Secretary of UPINS has not provided the requested information, in respect of which he had asked for an extension of the deadline, which, although allowed him, was not finally taken into account.
54. 693. Finally, the INS audit department concluded that the official, Ms Alicia Vargas Obando, had left the country on 30 July 2004 for Nicaragua, using the leave granted by UPINS under article 173 of the collective agreement in force at the time. In addition, on 28 September, she also left the country, under the provisions of article 171(d) and on 29 July 2005, under article 172. Thus if she had indeed been granted trade union leave in those three cases, she was “in violation of the provisions of the IN–UPINS collective agreement, articles 88(m) and 89(a) respectively”.
55. 694. Although Mr Luis Salas Sarkís did not so state, based on the statement of Mr Willy Montero and Ms Patricia Monge, it was taken as proven that the General Secretary of UPINS knew of the purpose and use of the leave and despite that submitted to the management the authorizations for Ms Alicia Vargas Obando, who would use them for personal activities unrelated to management of the union or institutional interests. Finally, Mr Salas Sarkís was found to be in breach of articles 211(1) to 213 of the General Public Administration Act, article 110 of the National Finance and Budget Act and article 13 of the Internal Control Act. He was therefore accused of embezzlement under article 354 of the Criminal Code. As regards the collective agreement, he was accused of violating articles 88, 26 and 172. It was also recommended that a disciplinary panel should be formed to initiate the procedure to determine the administrative liability of Mr Salas Sarkís and Ms Alicia Vargas Obando. Although it makes no mention of the ILO Conventions or the provisions of the Labour Code on freedom of association, the audit report cites in its final part an extract of judgement No. 233-95 of the Constitutional Court (concerning the limitation of trade union rights) whereby the trade union assumes, it is understood, that trade union rights do not apply to the two officials.
56. 695. At a time when the results of the audit report had not yet been notified, the newspaper La Nación published on page 10A of 10 November 2006, a news item under the headline “INS employee made personal trips while on trade union leave”. In the article, which expressly quotes extracts from the audit report, it is stated that the official concerned and Mr Luis Salas Sarkís will be summoned to a disciplinary panel to determine their liability.
57. 696. Although the Internal Control Act prohibits public disclosure of any part of the report, it is clear that it was conveyed directly to the offices of the daily newspaper La Nación by the INS authorities, since on the date when the news item was published, neither UPINS nor the officials Ms Vargas Obando and Mr Salas Sarkís knew of it. On the contrary, it was precisely a well-known journalist who wrote the article and showed Mr Salas Sarkís the report telling him that disciplinary proceedings would begin immediately.
58. 697. Based on the results of the INS internal audit report, the manager, Mr Luis Ramírez Ramírez, appointed three lawyers, all civil servants in the legal department as members of a disciplinary panel charged with determining the liability of Ms Alicia Obando and Mr Luis Salas.
59. 698. Mr Luis Salas Sarkís submitted to claims of nullity: (1) alleging failure to honour the extension of the deadline initially granted for submission of the requested information about the leave periods, since the final report was submitted to the Executive President of the INS before the deadline expired; and (2) violation of the principle of confidentiality, by virtue of the access and publication by the newspaper La Nación of the content of the report. However, both claims for nullity were declared inadmissible. He also requested evidence to assist the judgement, requesting that Mr Freddy Sandí, a member of the UPINS honour and disciplinary tribunal should be called to give evidence, since he sought to show that the facts reported by the former INS executive were false and had never been brought to the attention of the union’s internal bodies. However, the disciplinary panel refused the request, deciding, based on the General Public Administration Act and various opinions of the National Audit Office, that Mr Luis Salas had submitted his statement out of time.
60. In accordance with article 309(1) of the General Public Administration Act, this disciplinary panel observes that the request of Mr Luis Salas Sarkís is out of time … as when he requested it, on 13 June 2007, the opportunity had already lapsed since the hearing of evidence stage of the proceeding had already ended … Thus, the request for evidence to assist the judgment, consisting of the statement of Mr Freddy Sandí filed by Mr Luis Salas Sarkís is refused on the grounds that it is out of time.
61. Likewise, the application, based on the fact that INS was already aware of the facts on 25 October 2005 when the then executive Mr Willy Montero published them in a communication which reached the Executive President of the institution, was declared time-barred.
62. 699. Mr Luis Salas Sarkís stated in his defence that he rejected the charges, because the leave had been used to allow the official Ms Alicia Vargas to gather and bring back information from Nicaragua, a country to which she travelled regularly. As evidence, he produced a note sent by the General Secretary of the “Enrique Schmidt Cuadra” Federation of Communications and Postal Workers who confirmed that Ms Alicia Vargas had met with them in Nicaragua on 30 July 2004 and 28 and 29 July 2005. In addition, he indicated that the information gathered by Ms Alicia Vargas concerned the Dominican Republic–Central America–United States Free Trade Agreement and other matters of trade union interest. He also produced a copy of a legal action against Mr Willy Montero Bermúdez for defamation. Finally, he indicated that the testimony of Ms Patricia Monge Rojas and Mr Willy Montero Bermúdez was self-serving because when they resigned they were at odds with Mr Sarkís and the other members of the executive of this organization because of their constant questioning of his work as General Secretary of UPINS and the other members of the board. He also reiterated his previous explanation, when he had clarified a material error made when replying to the audit department, specifically in letter ref. UP123-2006 of 9 October 2006, in which he incorrectly stated that on 30 July 2004 the leave had been used by Ms Alicia Vargas to attend a formal meeting on the elimination of child labour with the CGT, when, in fact, it was to collect information in Nicaragua. As he stated, the error occurred in letter No. UPINS-0010-2006 of 23 January 2006, where leave was requested on that date but the reason was incorrectly stated, for which reason the material error was corrected.
63. 700. Ms Alicia Vargas who reiterated the trade union character of the three periods of leave granted also indicated that the INS manager, Mr Luis Angel Ramírez Ramírez, who had ordered the opening of the administrative proceedings and who acts as the appeal organ in the proceeding and the one who must finally decide it, lacked authority since prior to the start of the proceedings, as a member of the UPINS executive, she had filed a private criminal prosecution against him for defamation, which was heard in the First Circuit Criminal Court of San José and finally, Mr Angel Ramírez Ramírez was protected on grounds of challenge under paragraph (f) of article 55 of the Criminal Procedures Code and the Civil Procedures Code.
64. 701. During the investigation conducted by the disciplinary panel appointed by the INS authorities, Mr Willy Montero Bermúdez, Ms Patricia Monge Rojas (who at that time was not even an INS official) both former UPINS officials, Mr Rolando Salazar Porras, Deputy General Secretary, Ms Mayela Gómez Alfaro, former UPINS trade union relations secretary, Mr Edwin Granados Ríos, responsible for preparing the audit report and the accused, Mr Luis Salas Sarkís and Ms Alicia Vargas Obando were summoned to appear. During the hearing, the members of the disciplinary panel questioned Mr Luis Salas Sarkís on aspects such as what specific information on the Free Trade Agreement (FTA) had been gathered by the official Ms Alicia Vargas on her trip to Nicaragua, whether or not on the date she travelled the FTA had been approved in Nicaragua, whether or not that information had been known and discussed in the UPINS executive, whom the official had met in Nicaragua, whether she had any emotional relationship with anyone living in that country, how she collected the information in Nicaragua, where the meetings or interviews with trade union representatives in Nicaragua were held, who coordinated those meetings or interviews and since when, whether the UPINS had incurred any expense other than the leave for the trips made, where and how long the meeting lasted in which the official Ms Vargas gave him the information obtained on her trip to Nicaragua. In addition, he was asked whether the then official Ms Patricia Monge Rojas had informed him of any telephone call by Ms Alicia Vargas on the use of leave for personal purposes, and whether Mr Willy Montero has confronted the official Ms Vargas at any meeting of the executive board.
65. 702. In addition, in the statement by Mr Edwin Granados Ríos, who prepared the audit report, and stated that he had been surprised by the news item in the newspaper La Nación, he admitted that he had participated as a candidate in the elections to elect the UPINS executive board on several occasions, on a manifesto opposing Mr Luis Salas Sarkís.
66. 703. For their part, the witnesses Mr Rolando Salazar Porras and Ms Mayela Gómez Alfaro, both members of the UPINS executive board, contradicted in their statement that of Mr Willy Montero and Patricia Monge, indicating, moreover, the internal conflict in the union executive with the latter two. They also indicated the case of the witness Ms Gómez Alfaro, on internal matters of the organization such as:
67. 1. Tell me whether or not it is true that when travel to official courses with an external invitation was approved and leave was requested under article 26, whether or not the union required a written report.
68. R. Yes.
69. 2. If a member of the executive travelled on his own account aboard paying his own expenses for his personal affairs, should be submit a report?
70. R. No.
71. Finally, when Ms Mayela Gómez was asked if, during the time in which she was on the UPINS board, she had been aware that the institution had questioned some trade union leave, she replied that she had not (apparently that was the only occasion on which trade union leave had been questioned).
72. 704. Finally, by decision No. 16-06 at 9 a.m. on 28 August 2007, the disciplinary panel in the administrative proceeding indicated that the evidence of Mr Willy Montero and Ms Patricia Monge Rojas (who were witnesses present at the statements by Ms Alicia Vargas Obando concerning the error attributed to Mr Luis Salas Sarkís) shows that the periods of leave granted by the latter to the executive Ms Alicia Vargas was not for her to collect information on the FTA in Nicaragua, but on the contrary, he granted them knowing that she would use them for matters unrelated to trade union business and unrelated to institutional interests. The decision states:
73. In this regard, this disciplinary panel does not believe that a trade union representative who travels to another country supposedly to obtain information of importance to the trade union to which she belongs on a subject as highly complex and broad as a free trade agreement should be asked to give only an oral report, since that breaks with the most basic rules of control. It does not escape the consideration of this disciplinary panel that logic dictates that when a person is charged with gathering information on any subject, let alone such a complex one, the normal thing is for the findings, and all the other reasons and justification for the travel, to be set out in writing so that those concerned, in this case the trade union, can have access at any time to that information. Thus the argument of Mr Luis Salas it is not logical let alone credible. This, combined with the incontrovertible fact that there is no documentation whatsoever which contains the information supposedly collected by Alicia Vargas in Nicaragua on her trips in July 2004 and July 2005, as acknowledged by both Mr Luis Salas and Mrs Alicia Vargas, is a clear indication that on her trips, the latter did not gather or bring back information on the Free Trade Agreement as Mr Luis Salas claims, let alone that he asked her to carry out research into the matter ...
74. Another indication found by this disciplinary panel is the significantly secretive way in which Mr Luis Salas and Mrs Alicia Vargas handled everything related to the latter’s trips to Nicaragua in July 2004 and July 2005 using trade union leave. Evidence of this is that indicated by Mr Luis Salas on page 293, mentioning that Alicia Vargas passed on the information obtained in Nicaragua during her trips in July 2004 and July 2005 only to him, with the objective, according to him, of discretion, given that on page 291 Mr Salas had already stated that the information supposedly brought back by Alicia was not discussed or known within the UPINS board.
75. This clandestine nature, secrecy and reserve with which the travel of Mrs Alicia Vargas Obando to Nicaragua in July 2004 and July 2005 took place, are clear and convincing evidence that Mrs Alicia Vargas did not use the leave periods on 30 July in the first instance, and 28 and 29 July in the second for matters of trade union or institutional interest but on strictly personal matters, and that Mr Luis Salas Sarkís granted her those periods of leave knowing that that would be the cause, given that the latter’s solicitude throughout has been to justify his treatment of those leave periods with illogical and irrational arguments, and the evident lack of control and absence of accounting for and reporting of results by Alicia Vargas concerning the use of that leave to the UPINS board. Equally clear and convincing is the total lack of documentation to support the information supposedly collected by Mrs Vargas.
76. ... In the light of the foregoing and in accordance with the evidence in the case, including the precise and consistent serious indications found, this disciplinary panel finds that Luis Salas Sarkís abused his position as General Secretary of the UPINS trade union by deception of the administration of the National Insurance Institute in submitting to the management of the National Insurance Institute trade union leave with pay paid by that institution for Mrs Alicia Vargas Obando, knowing that the leave would not be used for trade union business let alone matters of institutional interest, but for personal affairs.
77. 705. With regard to the trade union character of Mr Luis Salas’ action, the disciplinary panel indicated that in interpreting the scope of ILO Convention No. 98, as indicated by the Committee on Freedom of Association, when a trade union official engages in culpable acts prejudicial to his employer (even when those acts have been committed in the exercise of his trade union office) he is liable to sanction including dismissal. Finally, it cites an extract of judgement No. 571-96 of the Constitutional Court, which states: “… in other words, although it is true that under trade unions rights, both trade union members and their representatives may not be subject to dismissal, transfer or any other decision which constitutes a deterioration in their conditions of work on the grounds of their trade union membership, this does not mean that by due process, which condition is satisfied in this case, they may not be dismissed on the grounds of justified dismissal laid down in labour legislation”.
78. 706. According to the disciplinary panel, the action of Mr Luis Salas Sarkís constitutes loss of trust and thus he may be dismissed without any liability of the employer.
79. 707. Under the collective agreement, once the disciplinary panel recommends the sanction, the worker concerned may appeal to the Labour Relations Advisory Board. This board is a joint bipartite body which issues a final recommendation concerning the person who is liable to sanction.
80. 708. On 20 September 2007, the Labour Relations Advisory Board met to consider both proposed dismissals. On 27 September, by decision No. 9, using the same arguments as the members of the disciplinary panel, the employer’s representative accepted its recommendation, reiterating the application for dismissal of both staff members without liability of the employer. Despite the fact that joint bipartite bodies are forums for negotiation and dialogue which seek to reconcile the positions of the employer and trade union, in the case of the trade unionists Mr Salas Sarkís and Ms Vargas Obando, the INS employer’s representative on the advisory board opposed recommending an “alternative” sanction which would avoid the dismissal of the two staff members, and on the contrary, accepted each and every one of the judgements of the disciplinary panel, recommending the dismissal of both employees. For its part, the trade union representative distanced himself from the recommendation and rejected the report of the disciplinary panel, and insisted that the case be stayed:
81. The trade union party recommends rejecting the report of the disciplinary panel and ordering that the case should be stayed, because it had been proved that the leave periods were justified by activities of trade union interest, which is shown by the evidence of the Enrique Schmidt Federation. They further indicate that it is clear that the recommendation is not dismissal for just cause but a clear case of trade union persecution which violates trade union rights.
82. 709. As the Labour Relations Advisory Board does not have any procedure for breaking a deadlock or compulsory arbitration, it must send both recommendations to whoever makes the final decision, and precisely because both staff members challenged the INS general manager and the disciplinary panel admitted that challenge, the final decision fell to the executive board of the INS, which must take the decision in the following days.
83. 710. The UPINS trade union charter establishes a disciplinary regime to sanction offences by its members which states expressly:
84. Chapter IV. Disciplinary regime
85. Article 10. Members of the union who commit offences shall be sanctioned by the following disciplinary measures, according to the seriousness of the offence:
86. (a) oral reprimand;
87. (b) written reprimand;
88. (c) suspension, up to one year, of trade union rights;
89. (d) removal from office or tasks performed in the union;
90. (e) permanent expulsion from the union.
91. There is an honour and disciplinary tribunal responsible for dealing with accusations of alleged offences committed by members of the union:
92. Article 11. Honour and Disciplinary Tribunal
93. The General Assembly at its regular session every two years must appoint an honour and disciplinary tribunal composed of three members who must possess the highest qualities of honour, discipline and integrity.
94. This tribunal is responsible for hearing disciplinary cases submitted for its consideration and, among other things, recommending the sanction applicable in the case, if appropriate, within a period of 30 days which may be extended to a maximum of 60 days and to request the executive to convene the assembly within not more than 15 days for submission of the examination and recommendations.
95. The members of the tribunal must have the willingness and time necessary to deal with matters within their competence.
96. Article 17. The application of the disciplinary measures set out in articles 12 and 214 of these Statutes shall be strictly a matter for consideration by the disciplinary panel and thus when a member of the executive board commits one of the offences indicated in this articles, the accusation shall be submitted to that body which shall refer the case to the Honour and Disciplinary Tribunal.
97. Article 18. To suspend, remove from office or expel a member of the union, the executive board through the general secretary shall convene the Honour and Disciplinary Tribunal to which it shall refer the accusation in question.
98. The Honour and Disciplinary Tribunal must summon the accused member to read him the charges against him, hear the defence by the accused and the witnesses he presents, issue a judgement acquitting or convicting the accused and draw up the necessary minute in the book established for such cases. On receiving the judgement, the executive board or the extraordinary general assembly convened for the purpose shall make a final decision. The judgement must be ready in 30 days.
99. It is interesting to note that the accuser, the former trade union official, Mr Willy Montero Bermúdez, when asked during his appearance before the executive board, said that he had not had recourse to the above tribunal because it could not be trusted:
100. 12. Why did you not submit this accusation to the trade union ethical tribunal?
101. R. Because I feel that the ethical committee never reached a decision, or even meet. The chairman of the committee, Mr. Freddy Sandí said that he did not have time, and another reason is that the committee could not be trusted.
102. And on this point, as indicated above, while Mr Luis Salas Sarkís requested as evidence that Mr Freddy Sandí should be summoned to give evidence, the disciplinary panel decided that the application was inadmissible because it was time-barred.
103. 711. The CGT considers that the alleged facts constitute clear interference in trade union activity, in violation of Conventions Nos 87, 98, 135 and 151 of the International Labour Organization.
104. B. The Government’s reply
105. 712. In its communication dated 12 February 2008, the Government refers to the allegations concerning the disciplinary proceedings against two members of the executive board of the UPINS.
106. 713. The Government indicates that the purpose of all administrative proceedings of this kind is to determine the truth of the matter (alleged trade union persecution of Mr Luis Salas Sarkís, General Secretary, and Ms Alicia Vargas Obando, women’s secretary, both of UPINS) and the measures involved in the corresponding investigation. The Government submits the report of the Executive President of the INS and states that it accepts it as its own.
107. Report of the Executive President of the INS
108. 714. According to this report, the INS administration has never used or in any way advocated practices seeking to curtail freedom of association of the trade union representatives of INS employees, and trade unionism in general and the provisions of collective agreements governing trade union leave to which members of UPINS are entitled are proof that the Institute has supported and protected trade union rights. Indeed, it has at all times respected all the guarantees and rights laid down in our legislation, and the ILO Conventions.
109. 715. It is not true that the investigation carried out to determine the truth of the matter by opening an “administrative proceeding” is a strategy aimed against the workers’ union and much less against Mr Salas Sarkís, but the result of the reasonable obligation of the administration to comply with the provisions of the Costa Rican law on this subject, namely, the General Public Administration Act, the Internal Control Act, the Corruption and Illicit Enrichment Act, and the very collective agreement which the complainant organization offers as evidence, and which must be applied in the face of the irregular acts committed, as duly shown, by both staff members. As evidence of this, the investigation is based on a factual report by the internal audit department of the institution, whose investigations are conducted with respect to the actions of any civil servant whether or not a trade union official.
110. 716. The Constitutional Court has made it clear in this case that recourse to protection (amparo) against administrative proceedings for alleged trade union persecution is not, in general, the proper route as since 1993 there has been an administrative procedure, the results of which can be challenged if necessary in the courts.
111. 717. Contrary to the assertions of the appellant, with respect to violation of due process, it should be noted that in accordance with the case law of the Constitutional Court, a correct understanding of the character and principles of due process requires that prior to the opening of an administrative proceeding, on occasion it is essential to carry out a series of preliminary inquiries, a prior investigation, in order not only to determine the person who may be guilty of the offence under investigation, but also to determine the need to continue with the formalities of the proceedings where appropriate. Thus it cannot be held to be in violation of the fundamental rights of the person covered by amparo that he has not been held formally as a party to the investigation, since it will be in the event that an administrative proceeding is actually commenced against him that due process must be respected and thus his right to defence.
112. 718. With respect to the complainant’s disagreement in asserting that there was a lack of a clear, precise and justified accusation concerning the attributed facts, the Constitutional Court considered that it was clear from the copy of the initial report of the proceeding that there was an indication of the matters subject to that investigation and thus the administration had instituted disciplinary proceedings against him, in order to investigate the substance of the offences of which he was accused, which were stated verbatim as: “(1) submitting to the management of the INS trade union leave with pay paid by that institution for Ms Alicia Vargas Obando, knowing that the leave would not be used for trade union business or matters of institutional interest”. The abovementioned judgement contains evidence of the manner, time and place of the facts attributed to the appellant, refers to the anomalies, which are made available to the appellant to exercise his right of defence, and provides such evidence of discharge as it considers appropriate. The determination of the circumstances of manner, time and place of the alleged conduct of the appellant are, precisely, the subject of the investigation, such that instead of depriving the appellant of a defence, the proceedings have the opposite effect, i.e. he participates actively in the investigation of the complaints.
113. 719. On the claim by the appellant that he requested the newspaper La Nación on 14 November 2006 to correct an item of news, which in his opinion infringed his rights, in that it published an article which was largely untrue on Friday, 10 November 2006, although without achieving a satisfactory outcome to his request, it should be mentioned that in a note “INS employee made personal trips while on trade union leave” the newspaper La Nación made representations. However, these referred to what was indicated in the internal audit report No. IA-070-2006 of the INS, for which reason the facts that were published were objective in character, and, moreover, it was not evident that the content was inexact or malicious nor that it caused injury to the appellant. Thus the appellant may do what is necessary at the opportune moment to exercise his rights of defence, such that it is necessary to reject the matter as far as this aspect is concerned without further consideration.
114. 720. In addition, both Mr Luis Salas and Ms. Alicia Vargas filed actions for amparo against the final decision handed down by the INS disciplinary board which approved their dismissal, and in the case of Ms Alicia Vargas Obando, the Constitutional Court again declared it inadmissible. The case of Mr Salas is pending in the Constitutional Court.
115. 721. As regards the malicious allegation by the complainant with regard to the intervention of the manager, Mr Luis Ramírez, in the administrative proceeding, it should be clarified that the manager did not interfere in the proceeding. Mr Ramírez formally barred himself from hearing matters related to the proceeding as shown in the documents submitted as evidence.
116. 722. The employer’s side indicated to the Constitutional Court that it was true that Mr Luis Salas was an employee of the INS, but as an active member of the UPINS union, he was occupied full time in dealing with union matters as General Secretary, such that the assessment of his activities as a civil servant was only in that context.
117. 723. The employer’s side is not aware of UPINS’ participation in struggles at national level and states that it is absolutely false that there is any discomfort with its position with respect to the FTA. On the contrary, discussions have taken place in the INS concerning the CAFTA–DR in which efforts focused on implementing the plan for integrated competitiveness (PIC) the purpose of which is to strengthen the INS. This plan has never been opposed by the trade union because we are in full agreement on its purpose. The administration has always promoted the project, stating expressly in various forums that the INS would be strengthened irrespective of the opening or otherwise of the insurance market, because it was clearly necessary to convert the INS into a competitive public institution. The appellant’s assertion concerning the unease of senior civil servants has no basis and they are subjective assessments which seek to distort the facts and deny the existence of proven disciplinary offences which led the Labour Relations Advisory Board to uphold the recommendation of dismissal of the disciplinary panel. It is not true that there is trade union persecution against him.
118. 724. Mr Salas’ problems with the manager were public knowledge but have nothing whatsoever to do with this case. Indeed, as shown in the evidence, Mr Salas filed a challenge in the aforementioned proceedings so that the manager would not participate in it. This challenge was accepted by the disciplinary panel in a decision in session No. 8829, article III, of 30 March 2007.
119. 725. The allegation that this is a matter of trade union persecution is not true. The proceedings began with a complaint by the members of the UPINS executive board itself, who forced the internal audit department to carry out an investigation into the anomalous use of trade union leave by the UPINS General Secretary in favour of Ms Alicia Vargas. It was the internal audit department which ordered the investigation. From the findings of the disciplinary panel in the proceeding, it is clear that the matters reported by the internal audit were being investigated and that the sanction was recommended after finding that the offences were fully supported by the findings in the report. The appellant seeks to evade his disciplinary liability, sheltering behind trade union rights which are not applicable when extremely serious offences against the legal order are found to have been committed, which in this case also involved public funds.
120. 726. The Constitutional Court found that the principles of due process had not been violated in the proceedings. The offence was shown in reports, and the findings were consistent with the matters reported by members of the UPINS executive board, as set out in internal audit report No. IA-070-2006 and assessment of them by the disciplinary panel and which were confirmed by the labour relations board.
121. 727. It was shown comprehensively in documentary and testimonial evidence that the leave was granted for private activities, not related to trade union business of institutional interest, and the public purpose of that leave was not satisfied. It is evident that it violates the spirit and purpose of trade union leave and proves above all that the leave was not granted on the terms authorized by articles 172 or 173 of the collective agreement.
122. 728. In the case of the union official, the employer’s side considers that while he was assisted by a right of trade union protection to ensure his security of tenure, the fact is that this right did not exempt him from imposition of the disciplinary sanctions applicable in law for violation of the legal order, when in the light of due process the commission of a disciplinary offence has been proved, as explained by the disciplinary panel.
123. 729. It is not true that the dismissal has already been enforced. It must be clarified that, as of today, no dismissal of the official has been decided, since the body competent to decide the sanction is the executive board, which must assess the arguments of the disciplinary panel and labour relations board to determine whether or not to impose the sanction of dismissal recommended by both bodies. The body responsible for taking the decision considered the matter for the first time on Monday, 8 October 2007. From 8 October 2007, the executive board would have one month to issue the final decision, which has not been issued to date. There is no state of lack of defence which would give rise to failure to respect the appellant’s rights and it is absolutely untrue that the decisions of the disciplinary panel and the employer’s side have no basis.
124. 730. As shown by the evidence presented, this is not a matter protected by trade union rights nor a matter of political differences as the appellant maliciously tried to suggest in order to evade his disciplinary responsibility.
125. 731. It is clearly shown in the proceedings that the offences alleged by the disciplinary panel were amply proved, since in fact the following was proved: in the case of the leave on 30 July 2004, the justification for the leave was nullified in order to make a visit to Nicaragua instead of attending an event of the CGT in Costa Rica. We must also point out that Mr Salas Sarkís approved this leave for Ms Vargas, being himself the representative of the CGT, and never reported her failure to attend the activity. On the contrary, during the proceedings he sought to conceal the offence by providing evidence, the falsity of which was demonstrated, by certifications of the Office of Migration and testimony of the parties, as well as the contradictions in his statement. Failure to comply with the legislation involving wrongful use of the leave was proved, as the immigration certificate showed that Ms Vargas was not in the country and the leave was granted for private purposes. As regards the leave on 28 and 29 July, despite the fact that the appellant indicates that he authorized the leave so that Ms Vargas could attend trade union activities on 28 and 29 July, this assertion was shown in the proceedings to be false, as the immigration document shows that Ms Vargas crossed the Peñas Blancas border on 30 July 2004 and 28 July 2005, thus she could not possibly have had the meeting she claims on that date, given that she was hours away from the place. Given that Ms Vargas and Mr Salas Sarkís himself say that the meeting was a lunch, that event could not have taken place because of her trip. In any case, the version that the meeting was a private lunch also contradicts the note of the abovementioned federation which claims that they were seminars (the subject of which it does not mention). Another contradiction is the fact that the supposed proof (which we do not recognize as it is merely a photocopy) says that the meetings were seminars, while the appellant alleges that they were to gather information on the FTA. In his testimony, the appellant states that he does not remember what kind of information it was. We must add that there are separate testimonies which indicate that Mr Salas knew that Ms Vargas regularly used trade union leave to visit her partner in Nicaragua and not only authorized that leave but also accepted that she did not even submit reports of her travel.
126. 732. For his part, the chairperson of the disciplinary panel in the administrative proceedings submitted a report to the Constitutional Court along the lines which have just been set out and according to which the internal audit department of the INS is independent of the administration of the Institute, as laid down in articles 21, 24 and 25 of the General Internal Audit Act. The internal audit department of the INS included Mr Salas Sarkís as one of the persons “possibly guilty” of the acts alleged in the report and issued instructions for the formation of a disciplinary panel to initiate the administrative proceeding on the merits in order to determine any potential administrative liability incumbent on the three civil servants, among them Mr Salas Sarkís. It found that the latter was aware of the purpose and unlawful use of the trade union leave with pay paid by the INS which he granted to Ms Alicia Vargas Obando. Despite that, he submitted the leave applications to the administration of the INS. As can be appreciated, the opening and conduct of the administrative proceeding against Mr Luis Salas Sarkís was the result of irregularities determined in the first instance by the internal audit department, which forced the administration to act on the findings of the audit body under the Internal Control Act.
127. 733. In a document submitted on 2 March 2007, Mr Luis Salas Sarkís filed an application for nullity of the decision of INS manager Mr Luis Ramírez Ramírez of 8 January 2007 in which, among other things, he alleges that the latter must excuse himself and not make a decision due to the complaint that Mr Salas had filed against Mr Ramírez. This was the first time that Mr Salas alleged an impediment with respect to the manager hearing proceeding No. 16-06. Based on this application for nullity, the disciplinary panel, in a decision at 10.30 a.m. on 5 March 2007 suspended the private oral hearing which had previously been announced and referred the application for nullity to the management to resolve, thus it is not true that that body failed to admit this as Mr Salas indicated in his application for amparo.
128. 734. Also based on the foregoing, the executive board of the INS assumed the function of decision-making body in the administrative proceedings (instead of Mr Salas) and confirmed everything done by the disciplinary panel and the management in a final decision No. III of 30 March 2007 of this collegiate body.
129. 735. It should be reiterated that it was the internal audit department of the INS which in the first instance indicated Mr Salas Sarkís as possibly guilty of a disciplinary offence and gave instructions for the formation of a disciplinary panel to initiate an administrative proceeding to determine any responsibility of Mr Salas, thus there was no violation of the right to impartiality as alleged by Mr Salas in his appeal.
130. 736. Contrary to what Mr Salas claims, his offence was stated clearly, precisely and with supporting evidence, as is shown from the proceeding and the decision of the Constitutional Court.
131. 737. With respect to the proportionality of the sanction, this too is merely a matter of legality, thus the applicant cannot claim that it was heard in a summary proceeding such as the one before this Constitutional Court. However, it should be indicated that the proportionality between the offence committed and the recommended sanction is more than justified by the following arguments: as regards the graduated nature of the sanction, although it is true that article 90 of the collective agreement of the INS indicates that sanctions must be graduated, starting with an oral or written reprimand from the chief, it also states that in the case of a serious offence, the management may impose such sanction as it sees fit, without being subject to the progression indicated. With regard to time-barring, in this case it did not apply, as indicated in the decision on the application for exception from the time-bar filed by Mr Salas.
132. 738. Article 163 of the INS collective agreement, referring to members of the union, indicates that during their period of office, they may not be dismissed, except for just cause. Logically, this means that if the rule establishes the possibility of sanctioning a trade union member in order to establish his responsibility, an administrative proceeding must be held, otherwise we would be faced with an immunity not established in labour legislation.
133. 739. As regards the supposed violation of the right to impartiality during the proceeding, the appellant is not in the right, since in the face of the action of Mr Salas Sarkís requesting barring of the manager from the proceeding, this application was accepted by the executive board in its decision of 30 March 2007.
134. 740. It is not true that the final decision issued by the disciplinary panel in the administrative proceeding and that given by the Labour Relations Advisory Board are inconsistent with the charges levelled. The appellant is wrong to state that there is an inconsistency because those decisions concern contraventions of legislation and regulations which were not alleged in the initial indictment.
135. 741. It is logical that for the commission of an offence to exist, there must first be a law which defines that act as unlawful, thus the claim by the appellant that he could be charged with an offence without that implicitly meaning a violation of the law would be to decide contrary to the law.
136. 742. As has been shown, under the decision issued by the disciplinary panel, the grounds set out are based on evidence gathered, with ample analysis of that evidence so as to allow a clear and precise conclusion concerning the responsibility of the appellant for the commission of the offence. Thus, it is not true that the principle was violated.
137. 743. As regards establishing whether the application of a sanction is proportionate to the offence committed, a series of relevant aspects need to be considered and not just the offence pure and simple. Otherwise, the establishment and application of the sanction would be merely subjective. In the present case, the offence committed not only involves transgression of the law as such, but also loss to the public purse, in granting leave with pay, granting rights contemplated in the collective agreement for purposes other than those established therein.
138. 744. Likewise, the appellant is not correct in claiming that the application of sanctions must be progressive, since what should prevail is the assessment of the abovementioned aspects, and the seriousness of the offence, and it would be incongruous if the administration was obliged to apply a progressive scale of sanctions for all types of offence, irrespective of their seriousness.
139. 745. As regards the arguments put forward by Mr Luis Salas Sarkís, it is important to note that the time-bar of the power of administrative sanction is interrupted with continuous effect with the notification of the act of opening of the administrative disciplinary proceeding. Thus, it cannot be claimed, as the appellant seeks to do, that this power is time-barred during the course of the proceedings.
140. 746. A report signed by the chairperson of the disciplinary panel in the proceedings contained a detailed chronology of the proceeding which shows that the time used to resolve it was in accordance with the law and the stages, and the time is reasonable. Furthermore, current legislation does not establish any particular time bar in relation to different offences but contains overall provisions on the time to initiate the administrative disciplinary proceedings once the administration is aware of the facts.
141. 747. It is not true that the senior management was aware of the facts from 25 October 2005, since when the internal audit department was informed of the supposed offences as a consequence of the complaint submitted by the civil servant Mr Willy Montero, it being the case that it was only when the audit report was concluded that the administration had precise knowledge of the facts.
142. 748. The appellant alleges that his rights were violated because the final decision was based on the testimony of two people who were members of the UPINS executive, and that they disliked him, insinuating in this way that their testimony lacked validity because it was a kind of “revenge”. However, from the documents making up the administrative proceeding, it cannot be inferred that Mr Salas was able to invalidate that testimony or show the “bad faith” of the witnesses.
143. 749. On the contrary, the evidence reviewed in support of the final decision includes the statement of Mr Rolando Salazar Porras, the current Deputy General Secretary of UPINS, i.e. a colleague of the accused, who stated “... Luis told me that Alicia was going to Nicaragua for personal reasons and would take advantage of the trip to obtain information ...”.
144. 750. The decision on the appeal for amparo filed by Mr Luis Salas Sarkís against the final decision by the executive board of the Institute, in which his dismissal was approved in accordance with the proven facts against him, is still pending, and we will be happy to keep you informed in due course of progress in the case and its final outcome.
145. 751. The Government states that respect for the guarantees and rights of due process for the workers involved was clear from all the foregoing, in accordance with the legal order and ratified Conventions of the International Labour Organization.
146. 752. It should also be emphasized that, in accordance with the principle of the rule of law enshrined in the Constitution, civil servants are simply repositories of the authority and may not assume to themselves powers that the law does not grant them and must swear on oath to observe and apply the Constitution and the laws.
147. 753. Furthermore, as additional evidence, it is important to take into account the report dated 12 December 2007 of the Director of the Directorate-General of Labour Affairs in the Ministry of Labour and Social Security, in which it is indicated that since the beginning of December 2007, room for dialogue between the parties involved in the dispute had been provided, aimed at finding a satisfactory solution to the problem, obviously within the applicable legal framework. To that end, the Director, in conjunction with the head of the labour relations department, Mr Alfonso Solórzano Rojas, held two meetings, separately with the parties, to examine options to achieve the described objective.
148. 754. Based on the arguments of fact and law set out above, the Government requests the Committee on Freedom of Association to set aside in all its aspects case No. 2064 filed by the CGT, since the diligence of the competent authorities to act in accordance with the law, concerning the facts of the matter complained of, has been shown by the documentary evidence, without prejudice to the lack of active justification of the complainants to apply to this international body and that the legal personality of the said organization has lapsed.
149. 755. In relation to the complaint submitted by the UMN, the Government states in its communication of 8 May 2008 that it is clear from their reading that the allegations are incomplete or inexact, and provide a fictitious account without any basis in fact and law.
150. 756. In this regard, the report of 18 April 2008 submitted by the Executive President of the INS is accepted verbatim as its own. The following are the most pertinent extracts of that report.
151. The administration of the Institute has never used or endorsed in any way practices which seek to curtail the trade union freedoms of the trade union representatives of INS employees.
152. On the contrary, all the guarantees and rights established in our legislation and Conventions of the International Labour Organization have been respected.
153. The fact that previous managements or executive presidents have granted the requested leave does not make this a permanent obligation which binds the present or future administrations but which in the light of the responsibility of an entity which provides services such as the health of thousands of Costa Ricans, it must weigh responsibly the benefit of granting the leave against the possible detriment to the functions performed by Dr Román González as a health professional. We further point out that in Costa Rica the public administration is governed by a series of principles such as the “rule of law” and the “duty of probity”, enshrined in article 11 of the General Civil Service Act and article 3 of the Anti-corruption and Illicit Enrichment Act, which provide as follows:
154. Article 11 (General Civil Service Act)
155. 1. Administrative law must be interpreted in a way which best ensures the achievement of the public purpose for which it is intended, within due respect for the rights and interests of the individual.
156. 2. It must be interpreted and incorporated taking into account other related legislation and the nature and value of the conduct and matters to which it refers.
157. Article 3. Duty of probity
158. Civil servants shall be required to behave in such a way as to satisfy the public interest. This duty shall be expressed, essentially, in identifying and meeting the priority needs of society, in an organized, lawful, efficient and continuous manner, in conditions of equality for the inhabitants of the Republic. In addition, they must show integrity and good faith in the exercise of the powers conferred on them by law, ensure that the decisions they make in the course of their duties are impartial and in accordance with the objectives of the institution in which they work and, finally, to manage public resources in accordance with the principles of legality, effectiveness, economy and efficiency, and accountability.
159. In this regard, each administration may have different ways of implementing measures which they consider appropriate to these obligations.
160. We recognize the importance of trade union organization and participation in the life of a country, and firmly support its development, but we must also have a duty to assess the potential detriment to the service performed by the civil servant, as clearly set out in article 2 of the Workers' Representatives Convention, 1971 (No. 135) of the ILO, which states:
161. 1. Such facilities in the undertaking shall be afforded to workers' representatives as may be appropriate in order to enable them to carry out their functions promptly and efficiently.
162. (...)
163. 3. The granting of such facilities shall not impair the efficient operation of the undertaking concerned.
164. The Institute must ensure that the functioning of the institution is not affected by granting the abovementioned leave, to the detriment of care of persons who need health services and thus the public interest (duty of probity).
165. In the same vein and as already shown and evident from the documents which form part of the bundle of documents in this case, but which should be emphasized, the Costa Rican Constitutional Court has repeatedly indicated as follows:
166. ... it is clear that although the civil servant is entitled to a determined time to perform the tasks relating to his representation, it is not an absolute and unrestricted right, but subject to the capacities that the enterprise or institution for which he works. This being so, this Court does not consider that any fundamental right of the appellant has been infringed, since the defendant authority in accordance with the conditions of the public services which it provides, did grant the appellant leave to attend trade union meetings, which does not necessarily mean that it must grant the time which the trade union unilaterally considered necessary. Judgement No. 2006-2967, 3.30 p.m., of 7 March 2006.
167. We may therefore conclude that my client has not infringed the trade union rights and freedoms of Dr Román González, as a product of alleged trade union persecution let alone presumed discrimination on grounds of gender, since it is clear that the Institute has granted the trade union leave in the form it considers most appropriate, after considering the harm to the effective functioning of the services she provides, although it was not in the form requested, but as indicated, both by the Constitutional Court and ILO Convention No. 135, this should not be considered an absolute and unrestricted right.
168. My client was agreeable to granting Dr. Román González the leave in accordance with the public service she provided, without it causing harm or detriment to the effective functioning, in accordance, I repeat, with the provisions of ILO Convention No. 135 and the case law of the Constitutional Court.
169. During the hearing in the Ministry of Labour and Social Security, for the same reason that concerns us here, to the question posed to Dr Juan Gabriel Rodríguez Baltodano, who signed this complaint, whether he knew that in the INS freedom of association of any woman was curtailed, he emphatically replied that there was not.
170. Dr Rodríguez also said that he had been told orally “that Dr Sonia Román was considered as extremely valuable to the Institute and for that reason they wanted to exploit her to the maximum” (sic), adding that the expression “exploit her” did not mean in the pejorative sense, but she was the only female doctor with experience of occupational medicine.
171. During the same proceeding, Dr Román Gonzáles herself volunteered the following: “… the review of letters to the boss and the review of all the CAJA-INS cases is totally invisible work and highly time-consuming, she told the chief medical officer orally, which defines whether I stayed in the CAJA-INS committee or labour consultancy ...”.
172. The foregoing statement by Dr Román herself proves that her work is quite broad and requires considerable time, which is why it is inferred that any absence on her part would be to the detriment of that work, to the point where she had to ask the chief medical officer to define which work she should be doing on Wednesdays.
173. On the other hand, also in the same proceeding, Dr Román indicated that on Wednesdays, precisely the day concerned, she did not have much work, and says that she reviews correspondence, if any, signers letters to the employer and uses the time to review letters and medical literature, and says that none of this work is so essential that it cannot be done another day.
174. The foregoing shows a huge contradiction in the Dr Román’s statements, as while on the one hand, she asks her chief medical officer to define her tasks because they require considerable time, and on the other she says that Wednesdays are almost holidays, suggesting a degree of convenience or complacency in her replies and seeking to persuade the responsible body that her absence would not prejudice the service.
175. Dr Román also indicates, in the same proceeding, that her trade union work during her absence in the period 2007-2009 can be carried on by the branch which was created the previous year, indicating that the branch was created to cover that situation (referring to the refusal of the requested leave).
176. However you look at it, the foregoing is false in the sense that the leave was requested from February 2007, the date on which she was re-elected to her office, and she states that the branch was created last year because of that situation, which is important.
177. As executive president, Dr Román was never refused trade union leave. What happened was a difference between what was requested by the complainant and what was granted.
178. It is established that the decision to grant Dr Román a time different from that requested was not any kind of trade union persecution or discrimination, but the paramount need of the National Insurance Institute to draw on the broad experience and excellent performance of that staff member in order to improve the service of INS-Salud, not only in direct patient care but also in carrying out a range of tasks which indirectly project a better image and service in one of the most important areas of the institution’s work, namely the health of thousands of Costa Ricans who constantly need our services.
179. It should be recalled that in the INS-Salud facilities, care is provided to thousands of patients affected by occupational accidents and traffic accidents, both areas which in the last years have suffered a considerable increase, such that the number of people injured as a result of such accidents has increased, requiring more attention from us.
180. As mentioned above, Dr Román, thanks to her long career and wide experience, as she herself said in her evidence, is a key cog in the service provided by INS-Salud, so that doing without her services during a difficult day means deterioration in the performance of the diverse tasks ancillary to direct patient care.
181. Furthermore, it has also been shown that the National Insurance Institute, represented by myself, has never violated the trade union rights of any other worker, nor those of Dr Román. On the contrary, we have faithfully observed the legal obligations imposed, both the principle of the “rule of law” and the “principle of probity”.
182. It should be recalled that Dr Román is paid a salary from public funds, justified by the services she provides as a doctor, which means that 20 per cent of this salary, paid from public funds, is not devoted to the intended purpose of public interest.
183. Weekly leave of a whole day for a staff member of such importance in the provision of a health service is considered by this administration as excessive, since it significantly affects the public interest.
184. Logically, there would be no objection on the part of the administration if the meetings took place on Saturdays or outside INS-Salud working hours, or a reasonable time at the end of the afternoon, which would seem logical for an executive board meeting.
185. 757. The Government adds that as can be clearly seen from the above report, the INS has respected the guarantees and labour rights established in national law and the provisions of Conventions Nos 87, 98 and 135 of the International Labour Organization.
186. 758. It has also been shown that the decision to grant Dr Román a time slot other than that requested is not because of any kind of trade union persecution or discrimination, but the paramount need of the INS to draw on the broad experience and excellent performance of that staff member in order to improve the service of INS-Salud, not only in direct patient care but also in carrying out a range of tasks which indirectly project a better image and service in one of the most important areas of the institution’s work, namely the health of thousands of Costa Ricans.
187. 759. Furthermore, it should be mentioned that with a view to maintaining harmonious worker–employer relations, the Labour Affairs Directorate in the Ministry of Labour and Social Security, at the request of the Minister of Labour, assumed the task of convening, in October 2007, a conciliation meeting between officials of the INS and the UMN. However, the parties did not manage to reach satisfactory conciliation agreements.
188. 760. Based on the arguments of fact and law set out, the Government requests the Committee on Freedom of Association to set aside, in all its aspects, the complaint presented by the UMN, since the diligence of the competent authorities in acting in accordance with the law in relation to the facts of the complaint has been shown.

C. The Committee’s conclusions

• Allegations of the National Medical Union (UMN)
  761. 761 The Committee observes that in this case, the UMN alleges that the National Insurance Institute arbitrarily refused the trade union leave which had been enjoyed by the trade union official Ms Sonia Román González for 11 years, every Wednesday from 7 a.m. to 4 p.m. to participate in meetings of the UMN executive board, allowing her for the period March 2007 to February 2009 only to attend meetings of the said executive board from 3 p.m. According to the UMN, that seriously impaired trade union business.
  762. 762 The Committee notes the Government’s statements according to which: (1) the grant of trade union leave by previous presidents of the INS did not make the situation permanent; (2) the management were obliged in their actions to observe the principle of the rule of law and the duty of probity to prevent any detriment to the care of persons needing health care services; (3) Convention No. 135 provides that the grant of facilities to workers’ representatives must not impair the efficient operation of the undertaking concerned; it is therefore not an absolute right but subject to the capacities of the enterprise or institution concerned and according to the Constitutional Court does not necessarily mean that the time determined by the trade union unilaterally should be granted; (4) there was no discrimination or trade union persecution since the time of leave granted was based on the need to draw on the broad experience and excellent performance of Dr Román in order to improve the service of INS-Salud, not only in direct patient care but also in carrying out a range of tasks which indirectly project a better image and service, against a background in recent years of a considerable increase in occupational and traffic accidents; (5) doing without the services of Dr Román during a difficult day means a deterioration in the performance of the diverse tasks ancillary to direct patient care; and (6) the Ministry of Labour convened a conciliation meeting of the parties in October 2007 but they did not succeed in reaching satisfactory conciliatory agreements.
  763. 763 The Committee points out that after 11 years of uninterrupted practice in the INS of trade union leave of one day per week for the trade union official, Dr Román, the new Executive President drastically reduced the number of hours. The Committee observes that the INS Executive President gives reasons linked to the effective functioning of the INS, the excellent professional performance of Dr Román and the increase in occupational and traffic accidents. The Committee regrets that the conciliation between the parties, attempted by the Ministry of Labour, did not lead to agreement.
  764. 764 The Committee wishes to underline that the UMN is a national organization and that according to the allegations she is the only female doctor on the UMN executive board (which has 11 members for the whole country) and that her functions as organization and trade union affairs secretary are very broad, as set out in detail in the complaint. The Committee further observes that Convention No. 135, as the Government points out, relates the grant of facilities to workers’ representatives with not impairing the efficient operation of the undertaking concerned. The Committee considers, however, that the good professional performance of a worker who is a trade union official should not be used as an argument to abruptly curtail the facilities she had been enjoying for many years. As regards the increase in the number of accidents invoked by the Government, the Committee thinks that consideration could perhaps be given to a reallocation of tasks between the workers of the entity concerned.
  765. 765 In these circumstances, the Committee requests the Government to make further efforts to bring the parties together with a view to re-examining the extent of the hours of Dr Román’s trade union leave, taking into account both the needs of the union and of a sustainable enterprise.
• Allegations of the General Confederation
• of Workers (CGT)
  766. 766 The Committee observes that in its complaint the CGT alleges the opening of disciplinary proceedings with anti-trade union objectives against Mr Luis Salas Sarkís, General Secretary of the National Insurance Institute Staff Union (UPINS) and Ms Alicia Vargas Obando, women’s secretary of the same organization, on the grounds of use of trade union leave by the latter and the authorization of that leave by the General Secretary. According to the allegations, the leave was granted in accordance with the collective agreement then in force in order that Ms Alicia Vargas Obando might obtain information in Nicaragua concerning the Free Trade Agreement with the United States (a burning issue in Costa Rica at the time of the alleged events, in particular in the social insurance sector). The CGT also alleges in great detail that the disciplinary proceedings did not respect the rules of due process (insufficient details of the offence, investigations prior to the administrative proceedings, breach of confidentiality, refusal of a testimony requested, challenge which did not succeed, etc.) and concerning the substance which did not duly take into account the provisions of the law and the collective agreement.
  767. 767 With regard to the alleged lack of respect for the rules and guarantees of due process relating to the trade union officials, the Committee notes the information provided by the Government and the INS, which clearly differs from the allegations. The Committee observes, however, that this matter was the subject of an appeal for amparo in the Constitutional Chamber of the Supreme Court of Justice and that this body declared the legal action submitted inadmissible (the Government is sending the judgements), thus the Committee will not dwell further on these allegations.
  768. 768 With regard to the question of violation of the confidentiality of the internal audit report which led to the opening of the administrative disciplinary proceeding, a point which the Constitutional Chamber considered, the Committee observes that according to the judgement, it was not proved that INS managers or internal auditors were responsible.
  769. 769 As regards the substance of the matter, the Committee observes that according to the complainant organization, the UPINS General Secretary submitted to the INS administration trade union leave for 30 July 2004 and 28 and 29 July 2005 to be granted to the UPINS women’s secretary under the legal framework and the collective agreement for trade union purposes: to obtain information from a trade union source in Nicaragua on the Free Trade Agreement with the United States and, more particularly, with respect to the insurance sector in a context in which the UPINS was characterized by its radical opposition to the signing of the Free Trade Agreement between Costa Rica and the United States, a matter which had displeased the INS administration (which was also denounced by the trade union to the inspection authority and the Supreme Electoral Tribunal). The Committee observes that the Government and the INS deny any anti-trade union motives, indicate that the improper use of trade union leave was denounced by UPINS officials and maintain that the UPINS women’s secretary used the leave for “personal reasons” quite unconnected with trade union business, in violation of the applicable legal provisions, and the General Secretary had been aware of the situation and accepted it. The Committee observes that at the end of the disciplinary proceeding by the internal audit department, the INS executive board examined the recommendation of the (bipartite) INS Labour Relations Advisory Board (opposed by the trade union party) and approved the dismissal of the women’s secretary and the General Secretary of the UPINS. The Committee notes that the appeal against this decision filed by the women’s secretary in the Constitutional Chamber of the Supreme Court of Justice was refused and observes that according to the Government, the UPINS General Secretary filed an appeal for amparo against his dismissal, which has not yet been decided.
  770. 770 The Committee will therefore confine its conclusions to the dismissal of the General Secretary of UPINS. In this respect, the Committee regrets that despite the fact that the alleged facts date from 2004 and 2005, there has still not been a final decision, and therefore recalls the importance in cases in which anti-trade union discrimination is alleged against trade unions of expediting proceedings rapidly, which is in the interests of all the parties involved.
  771. 771 The Committee notes the numerous arguments and evidence of the complainant trade union and the INS and the evidence produced to justify their conflicting positions on the question of the legality of the dismissal. The Committee considers that as the matter is before the highest legal authority in the country and to a large extent involves a matter of fact (namely whether the General Secretary was or was not aware of the real intentions of the women’s secretary in relation to the trade union leave or whether the trade union leave which he granted had both personal (to visit her boyfriend) and trade union purposes, as maintained by a witness mentioned in the Government’s reply), it is advisable to have the court judgement to hand before considering this allegation. This, moreover, because the Committee observes that in the present case there is also a question of law, which the complainant organization implicitly raises, concerning the proportionality of the sanction in the case of an offence being proved.
  772. 772 The Committee appreciates the Government’s efforts since the beginning of 2007 to convene meetings and create room for dialogue between the parties to find an appropriate solution. The Committee requests the Government to continue promoting dialogue between the parties and to inform it of the result of the appeal for amparo filed by the General Secretary of UPINS against his dismissal.
  773. 773 Lastly, the Committee notes the Government’s statement that, according to a certificate of 12 February 2008 of the Ministry of Labour, the complainant organization, CGT, is registered but its legal personality has lapsed. The Committee indicates, however, that it understands that the allegations refer to matters prior to that lapse.

The Committee's recommendations

1. 774. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) In these circumstances, the Committee requests the Government to make further efforts to bring the parties together with a view to re-examining the extent of the hours of Dr Román’s trade union leave, taking into account both the needs of the union and of a sustainable enterprise.
   • (b) With regard to UPINS, the Committee appreciates the Government’s efforts since the beginning of 2007 to convene meetings and create room for dialogue between the parties to find an appropriate solution. The Committee requests the Government to continue promoting dialogue between the parties and to inform it of the result of the appeal for amparo filed by the General Secretary of UPINS against his dismissal in order to be able to examine this question with all the elements.