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Effect given to the recommendations of the Committee and the Governing Body
Effect given to the recommendations of the Committee and the Governing Body
- 75. At its November 2008 meeting, the Committee formulated the following recommendations on the issues that were still pending [see 351st Report, para. 774]:
- (a) 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.
- 76. In its communication of 10 June 2008 (received at ILO headquarters in April 2009), the National Medical Union (UMN) states that, by a decision of 21 February 2008, the National Director and Inspector-General of Labour decided to lodge a complaint of unfair practices against the National Insurance Institute for refusing to grant trade union leave to the trade union official, Dr Sonia Román on the same terms that she had been granted for 11 years and, on 29 February 2008, it submitted a formal complaint to the judicial authority.
- 77. In its communications of 27 April and 21 June 2009, the Government states that it will provide information on the result of the judicial process against the National Insurance Institute relating to Dr Sonia Román’s trade union leave, and indicated that Dr Román is no longer a member of the UMN’s executive, therefore, in the Government’s opinion, the allegations are not of current interest.
- 78. With regard to the dismissal of Mr Luis Alberto Salas Sarkís, General Secretary of the National Insurance Institute Staff Union (UPINS), the Government states that measures have been arranged with the aim of promoting dialogue between the parties in order to reach a solution that is satisfactory for all involved, including a meeting between the trade union officials concerned and the authorities, and another with the President of the Republic. The Government adds that the Constitutional Chamber of the Supreme Court of Justice refused the appeal for protection (amparo) filed by Mr Salas Sarkís against his dismissal. The Government sends the ruling which states the following with regard to the substance of the case:
- The appellant (Mr Salas Sarkís) claims that due process was violated in three ways. Firstly, management is trying to dismiss him although he has not committed any wrongdoing in the exercise of his post, as the actions attributed to him were carried out in his role as a trade unionist. According to the final report of the panel that conducted the disciplinary proceedings, the Institute, in its dealings with the defendant, granted several instances of trade union leave with pay so that Alicia Vargas Obando could participate in trade union activities, although in reality the leave was used for other activities. This Chamber considers that determining if this was committed in the role of a trade union member or in another capacity is a matter outside the authority of a constitutional court. This was in fact at the very core of the discussion during the administrative proceeding. Consequently, the appellant’s opposition to decisions arising from the administrative proceeding must be channelled through existing administrative appeals. Secondly, in the factual report above, it was proven that the transfer of charges was done in a valid way, given that Mr Sarkís knew about the charges against him, the legislation that was infringed and his rights in the administrative proceeding initiated against him. Lastly, the defendant may exercise his right to defence by giving notice of the appeals provided for by the legal system. He took part in the private oral hearing, where he had the opportunity to question the witnesses more than once and actively defend his rights. Once again, the grounds and proportionality between the offence and the penalty are set out as part of the disciplinary proceeding itself, or possibly as part of industrial proceedings. Contrary to what the appellant appears to assume, there is no constitutional right to a less serious penalty. For these reasons, the appellant’s reservations cannot be considered as having any grounds, which is why the appeal is dismissed.
- 79. The Committee takes note of the information from the Government. The Committee looks forward to hearing the ruling that is handed down on Dr Sonia Román’s trade union leave. The Committee requests the Government to indicate whether, following the Constitutional Chamber’s ruling on the dismissal of the trade union official Mr. Salas Sarkís, Mr Sarkís has filed new administrative or judicial appeals.
