National Labour Appeals Court, Sixth Chamber, Balaguer, Catalina T. v. Pepsico de Argentina S.R.L., 10 March 2004

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. (…)

Role of International Law:
Direct resolution of a dispute on the basis of international law
Type of instruments used:

Ratified treaties;1 Instrument not subject to ratification2

“Amparo”/ Right to non-discrimination/ Invocation of generic grounds for dismissal/ Principle of trade union freedom/ Worker reinstatement/ Direct resolution of a dispute on the basis of international law

The plaintiff was a worker who was not a union official and therefore did not enjoy the job security (impossibility of being fired or suspended or having the terms of the employment contract modified without a prior judgment of exclusion from protection) that Argentinian law grants trade union leaders under domestic regulations: the Trade Union Act, No. 23551. However, the plaintiff was the wife of a trade union leader covered by the said legal protection and, moreover, she herself also carried out the activity of defending the rights of her fellow workers on a regular basis.

Then, after a collective dispute in which the plaintiff actively participated, the company notified Ms. Balaguer of her dismissal, justifying it on the grounds of poor work performance. Ms. Balaguer refused to accept the dismissal, stating that the real reason for the termination of the labour contract was her activity in defense of the rights of workers and her being the wife of a trade union leader, and she started legal proceedings for protection (amparo), demanding reinstatement in her job because of the discriminatory nature of her dismissal.

The specific Argentinian labour legislation, in its aspect of individual labour law, does not directly deal with discriminatory dismissal (notwithstanding the fact that it prohibits discrimination), and in collective labour law the Trade Union Act does not provide for reinstatement after anti-union conduct by an employer.

The first instance judge allowed the claim by Ms. Balaguer, endorsing the protection of her civil rights and ordering her reinstatement, based on general domestic Argentinian law (not specifically labour law) that prohibits all acts of discrimination, under pain of nullity (Law 23592).

On appeal, the National Labour Appeals Court confirmed the ruling. In its decision, the Court analyzed the notification of the dismissal, stating that the invocation of generic or broad reasons (in this case “poor performance”), were insufficient to meet the requirement imposed by domestic Argentinian labour law to justify a dismissal. And in view of the absence of grounds for the dismissal, the discrimination complaint by the plaintiff was just, and the judicial protection of her civil rights was appropriate. 

As grounds for its decision, the National Labour Appeals Court referred not only to domestic Argentinian anti-discrimination law (Law 23 551) but also to international instruments ratified by Argentina: the American and the UN systems for the protection of human rights that serves as a foundation to the right of non-discrimination.

Regarding the protection of workers who undertake trade union activities but without formal trade union posts, the Court based its decision on ILO Conventions Nos. 87 and 98, which broaden the basis of subjects protected by domestic Argentinian legislation. The Court observed:

“[that] Article 1 of Convention No. 98, in paragraph 1, states that “Workers shall enjoy adequate protection against acts of anti-union discrimination in respect of their employment”, and in paragraph 2, section b) provides that such protection shall apply more particularly against acts intended “to cause the dismissal of or otherwise prejudice a worker by reason of union membership or because of participation in union activities outside working hours or, with the consent of the employer, within working hours””.

Because the dismissal was defined as an act of discrimination, due to its being based on the trade union activity of the plaintiff, declaring it null was appropriate and, as a consequence of an unlawful act, the reinstatement of the worker was correct.

“In this case, it is irrelevant to the appellant's position that Balaguer had no stable post within the trade union and that art. 47 of law 23 551 does not allow reinstatement, as the legislation already mentioned that protects against discriminatory conduct is broader than the protection conferred by law 23 551, in that it punishes any unequal treatment based on different circumstances, including union ideas or activity.

Having clarified this, it should be pointed out that discriminatory dismissal, under law 23 592 and international treaties with constitutional standing (cf. art. 75, section 22 of the Constitution), insists that discrimination must "cease", and, in my opinion, the only way to achieve this is to reinstate the worker in their job, as discriminatory dismissals are null and void.”

1 ILO Convention on Freedom of Association and Protection of the Right to Organise, 1948 (No. 87); ILO Convention on the Right to Organise and Collective Bargaining, 1949 (No. 98); International Covenant on Economic, Social and Cultural Rights, 1966; International Covenant on Civil and Political Rights, 1966; International Convention on the Elimination of All Forms of Racial Discrimination, 1965; American Convention on Human Rights (“Pact of San José, Costa Rica”), 1969; International Convention on the Elimination of All Forms of Discrimination against Women, 1979; Convention on the Rights of the Child, 1989. 

2 American Declaration of the Rights and Duties of Man, 1948; Universal Declaration of Human Rights, 1948. 

Full text of the decision