Appellate Labour Court, Second Chamber, Inca S.A.C.I. v. Virgilio Villalba on justification of the reason for dismissal, 30 May 2000, Agreement and decision No. 41
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.
Use of international law as a guide for interpreting domestic law
Dismissal for purported insults and mistreatment of an employer/ Use of international law as a guide for interpreting domestic law
In order to justify the dismissal of a worker, an undertaking made application for a ruling. That application sought to justify the dismissal, which occurred because the worker lacked respect, insulted and mistreated his superior and disobedience of a work-related instruction.
The alleged lack or respect was a purported insult made by the applicant to his superior, during a discussion created by a change in tasks that the undertaking decided for the worker affected, against which the worker expressed his dissatisfaction. The judge of first instance accepted the arguments of the employer. Given this situation, the applicant entered an appeal.
In order to determine whether there was justification for dismissal for lack of respect by the applicant towards his superior, the Appellate Court used Spanish case law3 to interpret the Labour Code.4 The Court considered that although insult is a just cause for dismissal, the simple discussion initiated by the worker with his superior concerning disagreement with the undertaking’s decision did not constitute a reason for dismissal.
Likewise, the Court interpreted the Labour Code in light of ILO Convention No. 158, in order to clarify that the worker’s complaint about a purported infraction to his immediate superior did not constitute lack of respect that could lead to dismissal.
The Court decided the following:
“As for the mistreatment, whether in word or deed, it is a potential cause for dismissal if it degenerates into acts of corporal violence, threats, insults, improprieties and other multiple forms of vexation or irritation. The Supreme Court of Spain decided that a simple discussion initiated by a worker when the manager notified him of his suspension from his post does not constitute cause for dismissal. Because to discuss, debate or make public an issue or question reasonably is an inalienable personal right and, unless the limit imposed by propriety is transgressed, there is no act that offends the respect that should be shown a representative of the employer. There also is no lack of respect sufficient to lead to dismissal when a worker denounces infractions committed, in his opinion, by his immediate superior, when the facts that he denounces turn out to be true, following the lines of ILO Convention No. 158, which prohibits dismissal when it is a question of having made a complaint or tabled a procedure against an employer for purported violations of a law or regulation.”
As a result, the Appellate Labour Court interpreted domestic regulation in light of ILO Convention No. 158 and the case law of Spain in order to conclude that the discussion between the worker and the employer did not constitute a lack of respect, insult or mistreatment that could justify the dismissal. The Court revoked the sentence appealed.
3 Compendium of Labour Law, page 971: “Does not constitute cause for dismissal the simple discussion initiated by a worker when notified by the manager of his suspension from the job, then discuss, debate or make public reasonably an issue or question seems an inalienable personal right; and unless the limit imposed by propriety is transgressed, there is no act contrary to the respect that should be held for a representative of the employer.”