Report in which the committee requests to be kept informed of development - Report No 368, June 2013

Case No 2916 (Nicaragua) - Complaint date: 05-DEC-11 - Closed

Allegations: Transfer and subsequent dismissal of three trade union officials by the Ministry of Education on the pretext of restructuring

1. 687. The complaint is contained in a communication from the Administrative Workers’ and Teachers’ Union of the Ministry of Education (SINTRADOC) dated 5 December 2011.
2. 688. The Government sent its observations in communications dated 13 April and 21 June 2012.
3. 689. Nicaragua 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).

A. The complainant’s allegations

1. 690. In its communication dated 5 December 2011, SINTRADOC alleges the transfer and subsequent dismissal of Mr Orlando José Jiménez Hernández, General Secretary, Mr Randy Arturo Hernández López, Organization and Information Secretary, and Mr William José Morales Peralta, Labour and Disputes Secretary, which it ascribes to retaliation for their trade union activities in defence of workers’ rights (the complainant organization sends documentation relating to their union activities and claims).
2. 691. SINTRADOC alleges that, in August 2010, the authorities of the Ministry of Education arbitrarily and unilaterally informed seven workers, and the three abovementioned union officials who worked at the Directorate-General of Education, that as a result of reorganization, they would be transferred, leaving the posts of national supervisors of education at the Ministry headquarters to take up posts as classroom teachers, in other words, changing their general conditions of employment which SINTRADOC considers to violate the trade union immunity established in the legislation and in the collective agreement.
3. 692. Further to the presentation in August 2010 of complaints by the three union officials against the transfer, the labour inspectorate issued decisions in their favour. Previously, the three officials had filed a lawsuit with the Appeals Court, which provisionally suspended the transfer decision and ruled that the matter should be referred to the Constitutional Chamber of the Supreme Court of Justice. The complainant indicates that, on 13 April 2011, the aforementioned Chamber rejected the officials’ claims, whereupon the latter brought an action to overturn that ruling on the grounds that it was without any legal foundation. In September 2011, the Ministry submitted to the administrative authority of the Ministry of Labour, through oral administrative proceedings, the cancellation of the employment contracts of the three officials on the grounds of dereliction of duty. In the same proceedings, the cancellation of the employment contracts was authorized.
4. 693. SINTRADOC adds that, in view of this situation, and further to the adverse outcome of their appeal for amparo (protection of constitutional rights), the three union officials decided to bring an action against illegal dismissal through the ordinary labour court, requesting reinstatement and the payment of outstanding salaries.

B. The Government’s reply

1. 694. In its communications dated 13 April and 21 June 2012, the Government categorically denies that there were any anti-union grounds in the decision to transfer the three officials of the complainant trade union. On the contrary, it indicates that it maintains harmonious and respectful relations with the many trade union organizations in the teaching sector, as borne out by the fact that the current collective agreement, which is renewed every two years, has been signed by 11 trade unions. The Government adds that the decision to transfer the three trade union officials was taken in the context of restructuring the public education system, which entailed the abolition of the unit in which the officials and other workers were employed. The Government emphasizes that, in view of the fact that the posts occupied by the three officials were due to disappear, the Ministry of Education could have dismissed them directly under the legislation in force, but opted to maintain their employment and their salaries, taking account of operational reasons such as the urgent need to fill teaching posts at schools in the city of Managua. Since the three officials refused the transfer decided upon in August 2010, after the Constitutional Chamber of the Supreme Court of Justice had declared on 13 April 2011 that there had been no violation of constitutional rights (as the transfers were conducted within the law) and that the obligation was on the interested parties to accept the transfer in response to the needs of the education system, the labour inspector, at the request of the Ministry of Education, authorized the cancellation of the contracts of the three officials, in August 2011, on grounds of gross misconduct (failure to perform their duties) and the fact that the Teaching Careers Act authorizes transfers further to an order from the Ministry of Education. The Government confirms that the officials, Mr William José Morales Peralta and Mr Randy Arturo Hernández López, submitted a claim for reinstatement to the ordinary labour court, and that the Civil Service Appeals Board rejected the appeal lodged by Mr Orlando José Jiménez Hernández against his dismissal. An appeal for amparo was submitted by Mr Orlando José Jiménez Hernández and Mr Randy Arturo Hernández López against the dismissal decision issued by the administrative authority further to the ruling (against the three officials) issued by the Constitutional Chamber of the Supreme Court, and is currently pending. Lastly, the Government emphasizes that, in the present case, the interested parties have had recourse to numerous administrative and judicial remedies provided for in the legislation with a view to defending their rights.

C. The Committee’s conclusions

1. 695. The Committee observes that in the present case the complainant trade union alleges the illegal transfer of three trade union officials by decision of the Ministry of Education (a transfer not accepted by the officials concerned) in August 2010 and their subsequent dismissal, in September 2011, for dereliction of duty, further to an adverse ruling from the Constitutional Chamber of the Supreme Court of Justice, against which an appeal was then filed. The complainant emphasizes that the labour inspectorate initially decided in their favour. It believes that there are anti-union motives behind their transfer and dismissal – which it considers contrary to the legislation and the collective agreement – in relation to their activities in defence of workers’ rights, and considers that there has been a failure to comply with the law.
2. 696. The Committee notes that the Government categorically rejects the allegation of any anti-union motives for the transfers, and points out that they occurred in the context of the restructuring of the Ministry of Education, which entailed the abolition of the unit in which the three union officials and other workers were employed. In that context, the dismissal of the three officials was permitted under the legislation in force but the Government opted to maintain their employment and their salaries through the transfers, taking account of the urgent need of the service to fill teaching posts in schools in the same area. The Government also indicates that it has harmonious and respectful relations with the many trade union organizations in the teaching sector and that the collective agreement (signed by 11 trade unions) is renewed every two years. Lastly, the Government states that the interested parties have been able to take and are still taking legal and judicial action in defence of their rights.
3. 697. In the light of the Government’s explanations, the Committee considers that it has insufficient information – at least for now – to be able to conclude that the transfer and subsequent dismissal of the three officials were on anti-union grounds. The Committee observes that the interested parties, after various appeals, have brought an action in the labour court, which, apart from being due to rule on the anti-union motivation, will probably have to decide whether the decision of the Ministry of Education to transfer them, according to the allegations, from posts as national supervisors at the Ministry headquarters to posts as classroom teachers constitutes an infringement of labour law. The Committee further observes that the following are pending: (1) according to the allegations, an appeal filed by the interested parties to overturn the adverse ruling issued by the Constitutional Chamber of the Supreme Court of Justice; and (2) according to the Government, an appeal for amparo against the dismissal decision issued by the administrative authority further to the abovementioned ruling.
4. 698. In view of the above, the Committee requests the Government to keep it informed of any rulings handed down in relation to the events described in the allegations.

The Committee’s recommendation

1. 699. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendation:
   • The Committee requests the Government to keep it informed of any rulings handed down with respect to the transfer and subsequent dismissal of trade union officials Mr William José Morales Peralta, Mr Randy Arturo Hernández López and Mr Orlando José Jiménez Hernández.