Labour Court of Appeal of the City of Santa Fe, First Chamber, Fernández, Pedro c/ Ortiz, Arcangel v. CPL, 8 March 2012, Case No. 98/10
Constitution of the Nation of Argentina
Article 31
This Constitution, the laws of the Nation enacted by Congress in pursuance thereof, and treaties with foreign powers, are the supreme law of the Nation; and the authorities of each province are bound thereby, notwithstanding any provision to the contrary included in the provincial laws or constitutions, except for the province of Buenos Aires, the treaties ratified after the Pact of November 11, 1859.
Article 75, paragraph 22
(…) Treaties and concordats have a higher hierarchy than laws. The American Declaration of the Rights and Duties of Man; the Universal Declaration of Human Rights; the American Convention on Human Rights; the International Pact on Economic, Social and Cultural Rights; the International Pact on Civil and Political Rights and its empowering Protocol; the Convention on the Prevention and Punishment of Genocide; the International Convention on the Elimination of all Forms of Racial Discrimination; the Convention on the Elimination of all Forms of Discrimination against Woman; the Convention against Torture and other Cruel, Inhuman or Degrading Treatments or Punishments; the Convention on the Rights of the Child; in the full force of their provisions, they have constitutional hierarchy, do no repeal any section of the First Part of this Constitution and are to be understood as complementing the rights and guarantees recognized herein. (…)
Argentina
Dismissal
Use of international law as a guide for interpreting domestic law , Reference to international law to strengthen a decision based on domestic law
Ratified treaty;1 Instruments not subject to ratification;2 Work of international supervisory bodies3
Termination of employment contract without just cause/ Minimum length of service requirement/ Appropriateness of compensation for damages/ Use of international law as a guide for intepreting domestic law/ Reference to international law to strengthen a decision based on domestic law
This case involved a worker who was not provided with the possibility of claiming compensation for the unfair termination of his contract based on the fact that the length of his service in the post did not fulfil a minimum supposedly stipulated by law.
In this respect, the majority of the Court considered that while for this motive the worker could not claim the compensation established at set rates by the labour law, this did not imply that the worker did not have the right to protection against arbitrary dismissal set out in article 14a of the Constitution, and that he should not receive some kind of compensation. The Court supported its position by highlighting the following:
“By means of article 18 of Recommendation No. 166 on the Termination of Employment the ILO establishes that: ‘A worker whose employment has been terminated should be entitled, in accordance with national law and practice, to: a) a severance allowance or other separation benefits, the amount of which should be based, inter alia, on length of service and the level of wages, and paid directly by the employer or by a fund constituted by employers’ contributions; or b) benefits from unemployment insurance or assistance or other forms of social security, such as old-age or invalidity benefits, under the normal conditions to which such benefits are subject; or c) a combination of such allowance and benefits.’”
Thus, the Court considered that “the conduct of the employer in registering the employment relation in an irregular manner and subsequently dismissing the worker and refusing to pay compensation implies the negation of the two options recommended by the ILO, since the worker was refused compensation and does not have the right to social security unemployment benefit”.
Interpreting the Constitution in the light of ILO Recommendation No. 166, and reinforcing its argument by referring to other international instruments, the Court ruled that the worker had the right to compensation as a result of the unfair termination of the contract – despite the fact that the worker had not been employed for more than three months.
1 International Covenant on Economic, Social and Cultural Rights, 1966.
2 ILO Termination of Employment Recommendation, 1982 (No. 166).
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