ratified treaties¹, non-ratified treaties²

Freedom of association/ Due process/ Protection against arbitrary dismissal/ Use of international law as a guide for interpreting domestic law

An extraordinary writ was filed before the Constitutional Court after the courts of both first and second instance had denied the remedy of amparo filed by the unions against the Telefónica del Peru SAA and Telefónica Peru Holding SA companies. The plaintiffs demanded that these companies cease to threaten and violate the workers’ constitutional right to freedom of association and work by implementing a mass layoff plan contained in an executive summary prepared by the first of the defendants’ human resources management. A list of 77 workers to be dismissed was appended to the demand.

When the case reached the Constitutional Court, numerous layoffs had already taken place. The Court proceeded to consider whether the acts of dismissal had violated freedom of association and the right to work and examined the constitutionality of the rule that allowed those layoffs.

The Peruvian Constitution recognizes freedom of association in Article 28, paragraph 1). The Court held that this recognition encompassed the right of everyone to form organizations for the purpose of defending their occupational interests and the right to join or not join such organizations, which, in turn, implies the protection of affiliated or unionized workers against being subject to acts that may infringe their rights, whose real reason is their being affiliated or not to a union or similar organization. To examine the substance of the right in depth, the Court referred to ILO Convention No. 87, as follows:

“In accordance with the Fourth Final and Transitory Provision of the Constitution, constitutional rights must be interpreted within the context of international treaties signed by the Peruvian State in this field. [...]

The organic aspect of freedom of association is explicitly recognized in Article 2 of Convention No. 87 concerning freedom of association and protection of the right to organize, which states that it is ‘the right to establish and … to join organizations of their own choosing ...’. […] according to Art. 1, paragraph 2), letter “b”, a worker’s protection against any act that infringes upon freedom of association extends ‘to any act aiming at’ ‘dismissing a worker or having an adverse effect in any other way due to his affiliation to the union or to his participation in union activities’ [italics in the judgment]."³

The Court, noting that it was the criterion of union membership that had determined the application of the measure of dismissal, declared a violation of the constitutional freedom of association and, to reinforce its decision, added:

“... More specifically, in this case, freedom of association was violated by the dismissal of people having the status of members of the above-mentioned unions, a circumstance that entails a breach of the said constitutional right, a conclusion that becomes clear when one considers its substance starting from, or as established by, the above mentioned Convention on freedom of association.”⁴

The Court, then, went on to examine whether the provision on which the dismissal was based affected the right to work by stipulating an indemnity as the only reparation for arbitrary dismissal, with no provision for reinstatement. The Court concluded that the constitutional right was not respected, because that stipulation undermined the meaning of the right to work. It stated that compensation would be an additional form of restitution, if the workers were so to determine freely, but it could not be the reparation of an unconstitutional act. Hence, it determined that job reinstatement must be the necessary consequence of a null and void dismissal.

On the previous point, the Court also referred to international law to show that the latter sets minimum standards of protection and nothing prevents the protection given by domestic law from being more protective and stipulating both compensation and reinstatement of the worker:

“The form of protection can only be to return the state of affairs to before the unconstitutional act was committed, so that reinstatement is an inherent result of a null and void act. Compensation will be an additional or alternative form of reparation if the worker so determines freely, but it is not the reparation of an act that is invalid ab initio because unconstitutional.

Although, as argued by Telefonica del Peru SAA, paragraph “d” of Article 7 of the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights provides for the possibility of reparatory damages, as well as reinstatement, for arbitrary dismissal, it should be noted that international human rights law sets out minimum rights, which are always susceptible to higher levels of protection, and cannot mean in any way undermining the rights conferred by the Constitution as established by Article 4 of the aforementioned Protocol itself [⁵], let alone when the effect is to undermine the essential substance of constitutional rights. The interpretation of the latter must always aim at higher levels of protection. That is why the doctrine holds that constitutional rights are to be interpreted as mandates for optimization.

This reasoning can be extended to the provisions of Convention No. 158 on termination of the employment relationship, which, although not ratified and in the form of a Recommendation, also allows compensatory damages as protection against arbitrary dismissal.”⁶

On the basis of Art. 2 of the Constitution, interpreted in the light of ILO Convention No. 87, the Court declared the dismissals null and void and ordered the reinstatement of the workers.

¹Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87); Additional Protocol to the American Convention on Human Rights on Economic, Social and Cultural Rights (“San Salvador Protocol”), 1988.

²ILO Termination of Employment Convention, 1982 (No. 158).

³Paragraphs 9 and 10 of the decision.

⁴Paragraph 11 of the decision.

⁵Article 4 of the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights: “Inadmissibility of Restrictions - A right which is recognized or in effect in a State by virtue of its internal legislation or international conventions may not be restricted or curtailed on the pretext that this Protocol does not recognize the right or recognizes it to a lesser degree.”

⁶Paragraph 12, section (C) of the decision.