National Court of Appeal, Fifth Chamber, Parra Vera Maxima v. San Timoteo SA conc., 14 June 2006, Case No. 144/05 s.d. 68536
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 , Freedom of association , Protection against discrimination in employment and occupation
Establishment of a jurisprudential principle based on international law
Ratified treaties;1 Work of international supervisory bodies;2 International case law3
Dismissal/ Protection against anti-union discrimination/ Recourse for violation of freedoms and basic rights (“recurso de amparo”)/ Reversal of the burden of proof/ Establishment of a jurisprudential principle based on international law
A worker, dismissed on the grounds of restructuring, laid the matter before the courts, claiming to be a victim of anti-union discrimination. The claimant appealed the decision of first instance, which had dismissed her action, refusing her reinstatement in her job and payment of salary owed since the date of her dismissal. The tribunal had rejected her claims on the grounds that the statements of witnesses did not make it possible to determine that the dismissal was linked to a discriminatory attitude by the defendant. The tribunal of first instance declared that to annul a dismissal considered to be discriminatory, proof beyond any doubt must be submitted based on a very strict study of the underlying facts, a condition that, according to the tribunal, had not been met in that case.
The Court of Appeal had thus to decide whether the claimant’s dismissal was a discriminatory act in reprisal for her union activities.
In deciding that case, the Court of Appeal stressed the relevance of international law and stated that it must serve as a basis for all decisions by Argentine courts because of the primacy that the Constitution of that country attributes to international instruments within the Argentine legal system:
“Using only the provisions of the contract of employment Act regulating the right to protection against abusive dismissal and the right to work in order to reject the claimant’s claims not only would be indefensible from the national legal system point of view but also would seriously compromise Argentina’s international responsibility.”4
In particular, the judges of second instance granted decisive importance to the work of the ILO supervisory bodies by declaring that:
“The 1994 reform of the Argentine Constitution granted a constitutional standing to several treaties, declarations and international covenants on human rights and in particular to the American Convention on Human Rights (…) The reports, studies and others opinions that form part of the doctrine of the supervisory bodies of the International Labour Organization and, in general, the opinions and decisions adopted by the international bodies in charge of monitoring the application of treaties, covenants and universal declarations of human rights that have a constitutional and supralegal value must be essential guides for their interpretation and application by Argentine courts.”5
More specifically, the Court expressed itself on the “jurisprudence” of the ILO Committee of Experts on the Application of Conventions and Recommendations and of the ILO Committee on Freedom of Association by declaring that “knowledge about that jurisprudence is especially important in order to appreciate the scope of the various provisions contained in a convention.”6
On the basis of those sources, the Court of Appeal’s decision differed from that of the court of first instance, namely that the difficulty of proof was one of the greatest obstacles to obtaining effective protection against acts of discrimination committed by private parties. The Court decided that when a worker considers himself to be a victim of discrimination, in order to meet the requirements for protection of his fundamental rights and the difficulties of proof of the initial fact, there must be a transfer of the traditional rules of the distribution of the burden of proof whenever the worker can “provide a reasonable clue that the company’s action encroaches on his fundamental rights, in other words a prima facie evidence aimed to bring out the hidden reason behind the Company’s action for it, whenever there is one”.
In order to confirm the merits of the reversal of the burden of proof, considered to be decisive in this case, the Court of Appeal referred to the General Survey of the Committee of Experts on the Application of Conventions and Recommendations concerning ILO Convention No. 111 on Discrimination (Employment and Occupation).7
On the basis of that principle, the Court of Appeal considered that the discriminatory nature of the worker’s dismissal was proven. As for the sanction applicable for that dismissal, the members of the Court referred to several provisions, including Article 1 of ILO Convention No. 98, which provides that workers shall enjoy adequate protection against acts of anti-union discrimination. In that regard, the Court mentioned the position of the Committee on Freedom of Association, “which stresses that it did not seem that sufficient protection against acts of anti-union discrimination, which were the object of Convention No. 98, is granted by a law permitting, in practice, employers, under the condition of paying the compensation provided for by law for all cases of unjustified dismissal, to dismiss a worker if the real reason is his membership or trade union activity.”
Taking inspiration from the work of the ILO supervisory bodies, the Argentine Court of Appeal decided to overturn the decision of first instance, declare the dismissal null and reinstate the worker, considering that given the facts prior to termination of the contract of employment, there was actually an act of anti-union discrimination.
1 ILO Convention on Freedom of Association and Protection of the Right to Organise, 1948 (No. 87); ILO Convention on Right to Organise and Collective Bargaining, 1949 (No. 98); ILO Discrimination (Employment and Occupation) Convention, 1958 (No. 111); International Covenant on Civil and Political Rights, 1966; American Convention on Human Rights (“Pact of San José, Costa Rica”), 1969.
2 ILO Committee of Experts on the Application of Conventions and Recommendations; ILO Committee on Freedom of Association.
3 Inter-American Court of Human Rights.
5 See page 10 of the decision.
7 ILO: Equality in Employment and Occupation, General Survey of the Committee of Experts on the Application of Conventions and Recommendations, International Labour Conference, 75th Session, Geneva, 1988, Report III(4B).
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