Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 359, Mars 2011

Cas no 2241 (Guatemala) - Date de la plainte: 25-OCT. -02 - Clos

Allegations: The complainant organizations allege a number of anti-union acts in the Higher Electoral Tribunal, at the La Esperanza Centre and at Rafael Landívar University, as well as physical and verbal abuse of trade unionists

1. 529. The Committee last examined this case at its November 2009 meeting [see 355th Report, paras 751–765, approved by the Governing Body at its 306th Session].
2. 530. The Movement of Trade Unions, Indigenous Peoples and Agricultural Workers of Guatemala (MSICG) associated itself with the case in its communication of 25 January 2010. Likewise, the International Trade Union Confederation (ITUC) expressed support for the complainant organizations’ allegations in its communication of 17 February 2010.
3. 531. The Government sent its observations in communications dated 2 February, 5 and 27 May, and 2 and 21 July 2010.
4. 532. Guatemala 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. Previous examination of the case

1. 533. At its November 2009 meeting, the Committee made the following interim recommendations with regard to the allegations presented by the complainant organization [see 355th Report, para. 765]:
   • (a) With regard to the allegations concerning the Higher Electoral Court, the Committee urges the Government to send without delay the following: (1) the text of the ruling of the Labour and Social Insurance Appeal Court concerning the dismissal of trade unionist Victor Manuel Caño Granados; (2) the rulings concerning the dismissal of trade unionist Ulalio Jiménez Esteban and the suspension of 15 days’ wages of trade unionist Pedro Rudolp Menéndez Rodas.
   • (b) As regards the dismissals of Messrs Alfredo Arriola Pérez and Manuel de Jesús Dionisio Salazar, according to the allegations, after they had applied to join a union representing workers at the Higher Electoral Court, the Committee requests the Government to ensure that the labour inspectorate conducts an investigation into these dismissals without delay and, if it is shown that they were carried out for anti-union reasons, to take steps to ensure that the workers in question are reinstated immediately in their places of work.
   • (c) As regards the allegations of threats of dismissal and threats to the safety of trade union members in the context of the dispute in the teaching sector between the union and the Fundación Movimiento Fe y Alegría Fathers’ and Mothers’ Associations at the La Esperanza Centre, the Committee, taking into consideration the Government’s statements to the effect that the competent authorities in criminal matters have not received any complaints, invites the complainant organizations to lodge a formal complaint concerning the allegations with the competent authorities and to provide as much information as possible. The Committee also reiterates its recommendation that the Government should ensure that the workers in these institutions are able to join the union freely and without any form of intimidation, that the report of the labour inspectorate on violations of trade union rights is made available to the union, and that labour relations are conducted in a climate free from intimidation and violence.

B. The Government’s reply

1. 534. In its communication of 2 February 2010, the Government indicates, as regards the allegations of threats of dismissal and threats to the safety of trade union members in the context of the dispute in the teaching sector between the union and the Fathers’ and Mothers’ Associations (Movimiento Fe y Alegría) at the La Esperanza Centre, that the foundation has been dissolved and that its obligations under the Labour Code have been duly met, each worker having received his outstanding pay and other emoluments. The Government further indicates that the association is being wound up.
2. 535. As regards the allegations relating to the Higher Electoral Court, the Government indicates in its communication of 2 February 2010 that the case of Mr Pedro Rudolp Menéndez Rodas was heard by the Third Chamber of the Labour and Social Insurance Court, which confirmed the ruling, dismissing the charge of retaliatory action (suspension of 15 days’ wages) brought by the trade unionist, and that the case is therefore closed. Disciplinary action was taken against Mr Menéndez Rodas for misconduct considered to be serious, as he was employed as a security guard and was discovered by the court inspector and other persons under the influence of alcohol.
3. 536. In addition, in its communications of 2 and 21 July 2010, the Government adds that the ruling of 16 March 2009 authorizing the termination of the individual employment contract of Mr Ulalio Jiménez Esteban (an employee of the Higher Electoral Court) indicates that the grounds for dismissal were serious misconduct, failing to show up for work on numerous and repeated occasions without written justification, dereliction of duty, failure to obtain prior permission and absences not accepted by his immediate supervisor; the ruling authorizes the Higher Electoral Court to put an end to the working relationship with Mr Ulalio Jiménez Esteban once the judgement becomes enforceable. The Government indicates that on 21 July 2009, the Third Chamber of the Labour and Social Insurance Appeal Court handed down its decision confirming the ruling of 16 March 2009.
4. 537. The Government concludes that Messrs Ulalio Jiménez Esteban and Pedro Rudolp Menéndez Rodas in any case submitted resignations from their jobs with the court (documents Nos 004-2007 and 01-2008), which were accepted, and that the corresponding emoluments were subsequently cancelled.
5. 538. As regards the allegations concerning the Higher Electoral Court and the dismissal of trade unionist Víctor Manuel Caño Granados, the Government indicates in its communication of 5 May 2010 that the Third Chamber of the Labour Appeal Court ruled on 3 August 2005 that there were no grounds for reinstating Mr Caño Granados given that it had not been shown that the dismissal had been ordered as a retaliatory measure and in view of his past misconduct and the disciplinary action taken against him (a copy of the decision is appended).
6. 539. As regards the dismissal of Messrs Alfredo Arriola Pérez and Manuel de Jesús Dionisio Salazar (recommendation (b)), the Government indicates in its communication of 27 May 2010 that it is taking action through the labour inspectorate to ascertain whether the dismissals were carried out for anti-trade union reasons.

C. The Committee’s conclusions

1. 540. As regards the allegations of threats of dismissal and threats to the safety of trade union members in the context of the dispute in the teaching sector between the union and the Fathers’ and Mothers’ Associations (Movimiento Fe y Alegría) at the La Esperanza Centre, the Committee notes that the foundation has been dissolved and that its obligations under the Labour Code have been duly met, each worker having received his outstanding pay and other emoluments. Moreover, the complainant organizations have submitted no additional information in that regard.
2. 541. As regards the allegations relating to the Higher Electoral Court and the rulings relating to the dismissal of trade unionist Ulalio Jiménez Esteban and the 15 days’ suspension of wages of trade unionist Pedro Rudolp Menéndez Rodas, the Committee notes the following: (1) the case was heard by the Third Chamber of Labour and Social Insurance, which on 11 July 2007 confirmed the ruling dismissing the charge of retaliatory action brought by Mr Pedro Rudolp Menéndez Rodas, and the case is therefore closed; in the case of Mr Menéndez Rodas, disciplinary action for serious misconduct was taken against him; (2) the ruling authorizing the termination of the individual employment contract of Mr Ulalio Jiménez Esteban was handed down on 16 March 2009 and confirmed on appeal, and it indicates that the worker was dismissed for reasons unrelated to his trade union activities; and (3) in any case, Messrs Ulalio Jiménez Esteban and Pedro Rudolp Menéndez Rodas sent their employer letters of resignation which were accepted and the corresponding emoluments were subsequently cancelled. In these circumstances, in the absence of any additional information from the complainants, the Committee will not proceed with the examination of these allegations.
3. 542. As regards the allegations relating to the Higher Electoral Court and the dismissal of trade unionist Víctor Manuel Caño Granados, the Committee observes that on 3 August 2005, the Third Chamber of the Labour Appeal Court rejected the reinstatement of trade unionist Victor Manuel Caño Granados in view of his past misconduct and the disciplinary action taken against him, having determined that it had not been shown that the dismissal had been ordered as a retaliatory measure. In these circumstances, in the absence of any additional information from the complainants, the Committee will not proceed with the examination of these allegations.
4. 543. As regards the dismissal of Messrs Alfredo Arriola Pérez and Manuel de Jesús Dionisio Salazar, the Committee takes note of the Government’s information that measures are being taken through the labour inspectorate to ascertain whether the dismissals were carried out for anti-trade union reasons, appending copies of the measures. The Committee requests the Government to keep it informed of any developments and of the labour inspectorate’s conclusions with regard to the reasons for the dismissals.

The Committee's recommendations

1. 544. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendation:
   • As regards the dismissal of Messrs Alfredo Arriola Pérez and Manuel de Jesús Dionisio Salazar, the Committee takes note of the Government’s information that measures are being taken through the labour inspectorate to ascertain whether the dismissals were carried out for anti-trade union reasons. The Committee requests the Government to keep it informed of any developments and of the labour inspectorate’s conclusions with regard to the reasons for the dismissals.