Definitive Report - Report No 375, June 2015

Case No 3049 (Panama) - Complaint date: 07-MAR-14 - Closed

Allegations: The complainant organization alleges that, disregarding his status as a trade union official, the authorities transferred and subsequently dismissed the Deputy General Secretary of the National Federation of Associations and Organizations of Public Employees (FENASEP)

1. 419. The complaint in the present case is contained in a communication from the National Federation of Associations and Organizations of Public Employees (FENASEP) dated 18 November 2013.
2. 420. The Government sent its observations in communications dated 2 June and 27 October 2014.
3. 421. Panama 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. 422. In a communication dated 18 November 2013, FENASEP alleges that the Deputy General Secretary of FENASEP, Mr Edgardo Voitier, was transferred from one province (Colón) to another (Panamá) without being consulted and was subsequently dismissed by the National Customs Authority pursuant to Administrative Decision No. 398 of 12 November 2013, without any disciplinary reason or grounds for dismissal being given.
2. 423. The complainant organization explains that Mr Edgardo Voitier had been appointed as a clerk but worked as a customs inspector, and that the decision in question disregarded the protection that he was afforded in his capacity as Deputy General Secretary and for having been expressly appointed by FENASEP as one of the three officers who enjoy the privilege granted under section 185 of the Consolidated Text of Act No. 9 of 20 June 1994, as amended. According to the provision in question: “The following public servants, even if they do not occupy a public administration career position, can be dismissed only for the reasons established in the present act: (1) the General Secretary of any association or federation of public servants, from the time of his or her selection until three months after the conclusion of the term of office for which he or she was elected; and (2) up to three key officers of the executive boards or executive committees of associations or federations of public servants, appointed by the corresponding association or federation of public servants, for the duration of their appointment by their organization. The names of these officers will be provided to the General Directorate of the Public Administration …” Having been notified on 13 November 2013 of the contents of Decision No. 398 of 12 November 2013, Mr Edgardo Voitier filed an application for reconsideration with the General Directorate of Customs on 18 November of the same year.

B. The Government’s reply

1. 424. In its communication dated 19 June 2014, the Government states that, in dismissing Mr Edgardo Voitier on 12 November 2013, the appointing authority was exercising its discretionary power, since his appointment is based on the trust that his superiors have in him; and that the administrative procedure in question was carried out in compliance with all procedural safeguards. The Government also states that, in Administrative Decision No. 422 of 10 December 2013, a response was given to the application for reconsideration filed by Mr Edgardo Voitier, upholding the contested decision. Once the content of that decision had been notified, administrative channels were exhausted.
2. 425. In its communication dated 27 October 2014, the Government reported that the National Customs Authority had rehired Mr Edgardo Voitier as a project coordinator. The Government considered it important to highlight that the working conditions of the official in the position to which he was transferred are, in terms of remuneration, better than those he had prior to his dismissal. The Government also stated that an application for review filed by Mr Edgardo Voitier with the Supreme Court of Justice was pending a decision. It added that, as soon as the court’s decision on the transfer is known, it will be accepted by the National Customs Authority.
3. 426. Furthermore, the Government reports that this matter has also been referred to the Committee for the Rapid Handling of Complaints relating to Freedom of Association and Collective Bargaining, which arose from the Panama Tripartite Agreement signed on 1 February 2012 and was officially established by Executive Decree No. 156 of 13 September 2013.

C. The Committee’s conclusions

1. 427. The Committee notes that the complainant organization in this case alleges the violation of the protection afforded to certain trade union officials (trade union immunity) under the Consolidated Text of Act No. 9 of 20 June 1994, as amended, and more specifically relates to the transfer and subsequent dismissal of trade union official Mr Edgardo Voitier. The Committee notes the Government’s statements that: (1) in dismissing Mr Edgardo Voitier, the appointing authority was exercising its discretionary power and the administrative procedure in question was carried out in compliance with all procedural safeguards; (2) subsequently Mr Edgardo Voitier was rehired by the National Customs Authority as a project coordinator, with better conditions in terms of remuneration than those he had previously; (3) an application for review filed by Mr Edgardo Voitier with the Supreme Court of Justice, regarding his transfer, is pending a decision; and (4) the case of this official has been referred to the Committee for the Rapid Handling of Complaints relating to Freedom of Association and Collective Bargaining. The Committee regrets the action of dismissal initially taken against this trade union official given that the Consolidated Text of Act No. 9 of 20 June 1994, as amended, affords protection to active trade union officials against dismissal and that the Government has provided no information on the specific events that led to the dismissal, and has merely referred to the administration’s discretionary power to dismiss him. Taking into account that the subsequent rehiring of this official upheld the initial, previously decided transfer to another post, the Committee requests the Government to communicate the outcome of the application filed with the Supreme Court of Justice against his transfer and any agreement reached within the framework of the Committee for the Rapid Handling of Complaints relating to Freedom of Association and Collective Bargaining.

The Committee’s recommendation

1. 428. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendation:
   • The Committee requests the Government to communicate the outcome of the application filed with the Supreme Court of Justice against the transfer of Mr Edgardo Voitier to another post, and any agreement reached within the framework of the Committee for the Rapid Handling of Complaints relating to Freedom of Association and Collective Bargaining.