Definitive Report - REPORT_NO217, June 1982

1. 136. The Committee already considered this case at its meeting in November 1981 when it presented an interim report to the Governing Body. Since then, the Government forwarded its observations in a communication of 11 February 1982, which arrived too late to be considered by the Committee at its previous meeting.
2. 137. Costa Rica has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. Previous examination of the case

1. 138. In its original communication, the Sole Confederation of Costa Rican Workers (CTC), an organisation affiliated to the Latin American Central of Workers (CLAT), alleged that the enterprise known as the Tempisque Sugar Works, where a union was formed for the protection of workers' rights, the Tempisque Sugar Workers' Trade Union (UTRACAT), affiliated in turn to the CTC, had repeatedly persecuted a number of the workers through penalties and dismissals.
2. 139. According to the complainant, in October 1980, the UTRACAT trade union leader, Claudio Gamboa Valverde, was dismissed without grounds because he was a member of the union's executive Committee. Furthermore, in May 1980, the enterprise, taking advantage of the fact that harvesting was over, is alleged to have dismissed about 75 workers with permanent jobs because they belonged to the UTRACAT. Moreover, in May 1981, the enterprise allegedly dismissed a trade union leader named Santos Gómez Hernández and, in June 1981, Fernández Giménez, the union's secretary for training.
3. 140. Attached to the complainant's communication was a letter addressed by it on 22 June 1981 to the Minister of Labour, requesting the latter's intervention in obtaining the reinstatement of the dismissed trade union leaders. The complainant explained that Mr. Santos Gómez Hernández, before belonging to the UTRACAT's executive Committee, had been chairman of the Standing Committee of the Workers, at which time he had encountered no difficulties. However, according to the complainant, when Mr. Gómez became a union member and denounced the illegal persecutions imposed by the enterprise, which refused to draw up and enforce internal works rules, he was dismissed on a false accusation of drunkenness. As regards the dismissal of the secretary for training, Mr. Fernández Giménez, the complainants explained that he was dismissed on grounds of "reorganisation" whereas his own supervisors had stated that "in view of his output, he could keep his job and would not be dismissed during the reorganisation that was to take place". One month later, nevertheless, he was dismissed on the grounds of reorganisation. In the complainants' view, the true reason for this dismissal originated in the fact that Fernández Giménez had come to the assistance of a group of peasants who were being forced by their boss, Mr. Hernández, in teams of 12 workers to spray 80 bags of fertilizer which, in the climatic conditions in which the work is performed, constitutes unfair and inhumane condition of work. Mr. Hernández, having learned the name of the person making claims on their behalf, namely Mr. Alfonso Fernández Giménez, had him dismissed.
4. 141. As regards the allegation of dismissal of the three trade union leaders, the Minister of labour stated that, on receipt of the complaint, his department had requested the enterprise to state the reasons why it had terminated the contracts of Claudio Gamboa Valverde, Santos Gómez Hernández and Alfonso Fernández Giménez. Although he considered that there had not been any antiunion discrimination, the Minister explained that an inquiry was under way.
5. 142. As regards the allegation that, in May 1981, the enterprise, taking advantage of the fact that the harvest was over, terminated the contracts of 75 workers because of their union membership, the Minister of Labour stated that, under the terms of the inquiry that was carried out on his instructions at the time when the enterprise needed the maximum number of workers for harvesting, the total workforce amounted to 1,172 workers, 296 of whom belonged to the UTRACAT; at the end of the harvest, the total dropped to 1,052, 291 of whom belonged to the union; and that, when the temporary work was over, the total number of employees was 785, 222 of whom belonged to the UTRACAT. Thus, the enterprise showed that it had terminated the temporary contracts of a larger number of non-union workers than of workers actually belonging to the union.
6. 143. At its meeting in November 1981, the Committee accordingly recommended the Governing Body to note that, as regards the allegation concerning the dismissal of three trade union leaders quoted by the complainant, an inquiry had been ordered by the Ministry of Labour. The Committee requested the Government to keep it informed of the results of the inquiry and expressed the hope that if it were found that the trade union leaders had not committed any serious offence and were dismissed only on account of trade union membership or activities, the Government would endeavour to obtain their reinstatement. Concerning the alleged dismissal of approximately 75 permanent workers because they belonged to the UTRACAT, the Committee requested the Government to specify whether workers enjoying permanent employment and belonging to the UTRACAT were dismissed by the enterprise to which the complaint refers and, if so, for what reason.

B. The Government's reply

1. 144. In its communication of 22 February 1982, the Government explains that the inquiry carried out by a labour inspector proved that the allegations of dismissal of trade union leaders constituting acts of anti-union discrimination were unfounded.
2. 145. Thus, according to the Government, the cancellation of the contract of employment of Santos Gómez Hernández is lawful, considering that he committed on several occasions offences which, under sections 72(c) and 81(1) of the Labour Code, authorise the employer to terminate the contract of employment unilaterally. The documents attached in support of the Government's observations on the dismissal of Mr. Santos Gómez Hernández reveal that he was severely admonished for turning up to work in a state of drunkenness and that he was warned that he would be dismissed if he did so again.
3. 146. As far as Alfonso Fernández Giménez is concerned, the enterprise proved that he was dismissed within the context of a necessary reduction in staff due to economic difficulties. The Government explains that the person concerned, who at first was a foreman during the sugar cane harvest, was transferred at the end of the harvest to statistical duties and that economic difficulties had led the enterprise to terminate the contracts of employment of several persons, including Alfonso Fernández Giménez.
4. 147. Finally, concerning the dismissal of Claudio Gamboa Valverde, the facts are, according to the Government, the following: he was the chief industrial relations officer of the enterprise, a position of trust since, as an employers' representative, be was responsible for the conduct of and improvement in relations between the workers and the enterprise. These duties were judged to be incompatible with his trade union membership. The Government states that the employer, like the ministry of Labour, considered that his membership was prejudicial to the exclusive loyalty owed by a senior executive to the interests he represented and which he must scrupulously respect. Faced with this breach of trust, the enterprise decided to terminate the contract of employment of Claudio Gamboa. However, the Government adds, neither the enterprise nor the authorities subjected him to any discrimination whatsoever. On the contrary, on 3 December 1981, the Executive appointed him as one of the workers' members of the National Wages Council for the period 1982-86, as attested by Decree No. 173 TSS of 3 December 1981, a copy of which is attached to the Government's communication.
5. 148. Concerning the allegation of the dismissal of about 75 permanent workers because they belonged to the UTRACAT, the Government explains that, as far as activities related to harvesting are concerned, it is impossible to speak of "permanent work", since the national practice is that, at the beginning of the harvest, employers take on staff to whom other jobs which depend on the volume of work to be done for the period in question, will be assigned for a certain time. In these circumstances, these staff cannot be classified as staff having permanent contracts, so that criteria of anti-union discrimination can be applied to it, as the complainant seeks to show. Thus, the permanent contracts which do exist in the firm are limited to other categories of persons who were not affected by the dismissals.

C. The Committee's conclusions

1. 149. The Committee notes that in this matter of allegations concerning the dismissal of trade union leaders and militants, the complainant's and the Government's versions contradict each other. According to the complainant, the Tempisque Sugar Works launched a campaign of persecution against unionised workers by dismissing union leaders and militants on the pretext that the sugar cane harvest was over. On the other hand, according to the Government some of the dismissals were for specific reasons: Santos Gómez Hernández was dismissed for turning up for work several times in a state of drunkenness and Claudio Gamboa Valverde for engaging in trade union activities, when at the same time as chief industrial relations officer, he occupied a position of trust in the management of the enterprise; others took place for economic reasons: this was the case of the workers mentioned by the complainant, including the trade union leader, Alfonso Fernández Giménez.
2. 150. On numerous occasions, the Committee has recalled that, while the appropriateness of dismissing workers for economic reasons obviously does not come within its sphere of competence, it nevertheless considers it appropriate to reiterate the importance of effective protection against dismissals for trade union reasons and that this protection must particularly extend to trade union leaders. The Committee points out that, as far as cases of dismissals for economic reasons are concerned, acts of anti-union discrimination ought not to occur under the pretext of such circumstances.
3. 151. The Committee further recalls that, as far as Costa Rica more particularly is concerned, in comments made over many years and again in March 1981, on the application of Convention No. 98, the Committee of Experts on the Application of Conventions and Recommendations requested the Government to adopt measures to protect workers against acts of anti-union discrimination. The Committee on Freedom of Association, for its part, has several times pointed out as regards Costa Rica the need to make explicit provision in the legislation for appeal procedures and sanctions to ensure the effective application of Article 1 of Convention No. 98. The Committee therefore considers that one way of protecting trade unionists is to provide that they cannot be dismissed either during the performance of their duties or for a certain period of time after the expiry of their mandate unless a serious offence has been committed. A further means of ensuring effective protection for workers would be to make it compulsory for each employer to prove that the motive of his intention to dismiss a worker has no connection with the worker's union activities.
4. 152. In this case, the Committee notes that one of the trade union leaders cited by the complainant was dismissed for turning up at his place of work in a state of drunkenness, as shown by the documents attached to the Government's reply. As far as this person is concerned, the Committee considers that his dismissal is not an infringement of freedom of association. On the other hand, according to the Government, another leader was dismissed for belonging to the union at the same time as he occupied a position of trust in the management of the enterprise. On this point, the Committee, like the Committee of Experts on the Application of Conventions and Recommendations, considers that the right to join joint organisations with the rest of the workers of the enterprise can be denied to management staff and persons holding positions of trust on condition that they can join their own organisation. The Committee further notes with interest that, in this case, the person in question was appointed by the Government as a workers' representative to the National Wages Council.
5. 153. As regards the trade union leader and the unionised workers who, it is claimed, were dismissed for economic reasons, the Committee, while noting the information communicated by the Government, recalls the importance which it attaches to the fact that no act of anti-union discrimination should take place under the pretext of such circumstances.