Appellate Labour Court, Second Chamber, Carmen Sachelaridi Knutson v. Cooperativa Santísimo Redentor Ltda. concerning payment of Guaranis for several items, 26 May 2000, Agreement and decision No. 40
National Constitution of Paraguay
Article 137, paragraph 1
The highest law of the Republic is the Constitution. This, the treaties, international conventions and agreements adopted and ratified, the laws adopted by Congress and other legal provisions of lower hierarchy, make up domestic positive law in the order of precedence given.
Duly negotiated international treaties, adopted by law by Congress and whose instruments of ratification were exchanged or deposited, form part of the domestic legal regulations with the hierarchy determined by Article 137.
Lacking legal or contractual labour norms precisely applicable to the case under discussion, the case shall be resolved in accordance with equity, the general principles of the labour law, provisions of International Labour Organization Conventions applicable to Paraguay, principles of common law not contrary to those of the labour law, doctrine and case law and custom or local use.
Sexual harassment , Protection against discrimination in employment and occupation
Reference to international law to strengthen a decision based on domestic law
Discrimination on the grounds of sex/ Sexual harassment/ Reference to international law to strengthen a decision based on domestic law
Three workers denounced sexual harassment by the manager of a cooperative. Faced with these complaints, the cooperative called for examination of the facts, with a result that was not in favour of the applicants. Given this situation, the workers resigned from the cooperative, but one of them made a legal application. The applicant maintained that she was driven to a motel by the manager, where the manager tried to force her into a room, but because of her shouts, the manager drove away. That application was declared inappropriate for lack of evidence. Given the situation, the worker made an appeal.
In order to determine whether there was sexual harassment, the Appellate Court applied the Labour Code,3 in virtue of which the Court interpreted that the so-called vertical sexual harassment or blackmail stems from the position of authority between the active and passive subjects. That Labour Code also specifies the forms in which sexual harassment can occur: by threats, harassment, blackmail, handling with sexual intentions by the hierarchical superior towards the worker. Likewise, the Court, based on the Labour Code, ruled that that norm entitled the worker to end the labour contract with payment of the pertinent legal benefits.
Furthermore, the Court made reference to ILO Convention No. 111 to stress that sexual harassment constituted a special form of discrimination based on gender. The Chamber studied that Convention in order to give improper conduct its due importance, because it adversely affects working conditions and labour harmony.
The Court decided the case as follows:
“Paraguay has ratified ILO Convention No. 111 concerning Discrimination in respect of Employment and Occupation, which prohibits discrimination based, among other reasons, on gender and that has the effect of changing or canceling the equality of opportunity or treatment at the employment and occupation, including in these terms both access to professional training and employment and various occupations, as the working conditions in their broadest definition. The concept of sexual harassment is recognized as a special form of discrimination based on gender.
(…) ILO Resolution concerning equality of opportunity and work for male and female workers in employment, adopted on 27 June 1985, in its paragraph 5, within the section on work conditions and environment, states that harassment of a sexual nature in the workplace harms the working conditions and the perspectives of promotion of workers (…)”
In conclusion, the Appellate Labour Court applied the Labour Code in order to determine that there was sexual harassment by blackmail by the manager against the worker. Furthermore, the Court made reference to ILO Convention No. 111 in order to stress that sexual harassment constitutes discrimination on the grounds of sex.
3 Article 81(w) of the Labour Code of Paraguay: “(…) as justification of termination of the contract by the unilateral will of the worker: the acts of sexual harassment consisting in threats, pressure, harassment, blackmail or handling for sexual intentions towards a worker of one or another gender by the representatives of the employer, heads of the undertaking, office or workshop or anyone hierarchically superior.”