Effect given to the recommendations of the committee and the Governing Body - REPORT_NO355, November 2009

Effect given to the recommendations of the Committee and the Governing Body

1. 67. The Committee last examined this case at its November 2008 meeting [see 351st Report, paras 35–38] and on that occasion requested the Government: (1) as to the dismissal of the members of the executive committee of the Independent Union of Workers of the National Community Development Office of DINADECO (SINTRAINDECO) (Lucrecia Garita Argüedas, Rafael Ayala Haüsermann and Giselle Vindas Jiménez) a few months after the trade union was established, to keep it informed of the outcome of the judicial or administrative proceedings relating to the dismissals of the trade union leaders in question, and should it be found that they were dismissed on anti-union grounds, to take measures to ensure that they were reinstated in their posts or in similar posts corresponding to their abilities, with payment of wages due and appropriate compensation. Moreover, if the competent judicial authority finds that reinstatement is not possible, the Committee requests that they be fully compensated; and (2) concerning the alleged dismissal of the leaders of SINTRAINDECO, Óscar Sánchez Vargas and Irving Rodríguez Vargas, to take measures to ensure that an independent investigation is carried out in this regard and, should it be found that they were dismissed on anti-union grounds, to take measures to ensure that they are reinstated in their posts, with payment of wages due and appropriate compensation. Moreover, if the competent judicial authority finds that reinstatement is not possible, the Committee requests that they be fully compensated.
2. 68. In a communication of 27 April 2009, the Government refers to information provided by DINADECO, according to which all the civil servants referred to were appointed on a temporary basis to posts in the public sector, and therefore enjoy “estabilidad impropia” (when the interim worker may only be removed from his post if he is to be replaced by a permanent candidate, or if he was standing in for another worker who then returns to work) in accordance with the terms of judgement 867-91 of 3 May 1991, issued by the Constitutional Chamber. This means that they can be dismissed from their posts provided that they are replaced by workers who have passed the corresponding exams. These interim workers are then added to the list of those eligible for appointment to permanent posts maintained by the General Directorate of the Civil Service.
3. 69. As to Ms Lucrecia Garita Argüedas, in accordance with official letter RSDA-02-891-RH, she took up post No. 005739 on a temporary basis at DINADECO on 11 June 2002, remaining in that position until 16 February 2004, on which date she was informed that her interim appointment had been terminated. She was again hired on a temporary basis from 1 March 2005, in post No. 97237. On 10 July 2006, through official letter
4. No. 264-2006-DRH, she was informed that, in accordance with Civil Service list No. 122806, a candidate had been selected for post No. 97237. Ms Garita Argüedas lodged an appeal for the selection decision to be revoked. The General Directorate of the Civil Service, through official letter No. ARSP-463-06, of 28 September 2006, informed the human resources department of DINADECO that Ms Garita Argüedas had been an eligible candidate for a clerk 3 class position since 2005. This means that at any time she could be included by the General Directorate of the Civil Service on a list of three candidates or a personnel list from which she might be chosen for appointment to a permanent post.
5. 70. With regard to Giselle Vindas Jiménez, who was appointed on an interim basis by DINADECO as of 16 February 2004, she was later appointed, again on a temporary basis, to another post as an information systems analyst, as of 1 January 2005. On 30 June 2006, Ms Vindas Jiménez was made redundant owing to the fact that her post had been reclassified as a graduate class social promotion position within DINADECO, as approved by the Decentralized Office of the Civil Service of the Ministry of Public Security. Ms Vindas Jiménez lodged an amparo (protection of constitutional rights) appeal with the Constitutional Chamber of the Supreme Court of Justice against the decision to make her redundant. The Constitutional Chamber ruled in her favour and DINADECO proceeded to reinstate Ms Vindas Jiménez in her post (which she occupies to this day), on a temporary basis.
6. 71. With regard to Mr Rafael Ayala Haüsermann, who was appointed on a temporary basis to the post of social promoter within DINADECO, on secondment from the Ministry of Public Security, as of June 2003. Later on, from 1 January 2005, he was appointed on a temporary basis to post No. 97257 (mobile equipment operator). On 7 July 2006, DINADECO informed him that the post had been altered to security and surveillance class 1, approved by the Decentralized Office of the Civil Service of the Ministry of Public Security, his contract being terminated as a result. Mr Ayala Haüsermann lodged an amparo appeal with the Constitutional Chamber, with the Chamber ruling that the appeal was groundless on 17 June 2006 and stating that “In the case of the interim appointment and in those cases in which a replacement must be found for a permanent civil servant for a fixed period, in order to ensure consistent interpretation of our legislation the dismissal of the interim worker be carried out on the grounds that the post is to be permanently occupied by a civil servant ...”.
7. 72. Óscar Sánchez Vargas was appointed on a temporary basis to a post within DINADECO from 16 January 2001, to 4 December 2006. On 9 November 2005, he lodged a formal request for an invalidity pension with the Costa Rican Social Security Fund. On 20 October 2006, he was informed that the Directorate for the Classification of Invalidity Status had granted him invalid status. Once a worker has been informed that his request for an invalidity pension has been granted, he must resign from his state post in order to enjoy the benefit granted. In view of Mr Sánchez Vargas’ invalid status, it can be concluded, looking at his personal file, that he accepted the invalidity pension, and, therefore, he was not made redundant as a result of anti-union discrimination.
8. 73. As to Mr Irving Rodríguez Vargas, he was employed on a temporary basis as of 1 July 2005. On 15 August 2006, he was made redundant because a candidate was appointed to the post on a permanent basis.
9. 74. The Committee takes note of this information, in particular, the reinstatement of Ms Vindas Jiménez and the fact that Mr Sánchez Vargas made a successful application for an invalidity pension, as a result of which his contract was terminated. As to the other dismissals, the Committee notes that the Government denies that they were carried out on anti-union grounds and emphasizes that the staff affected were on interim contracts. The Committee notes that the Constitutional Court refused Mr Ayala Haüsermann’s request to be reinstated and that the other workers dismissed lodged unsuccessful administrative appeals. The Committee observes that from the Government’s statements it can be deduced that there are no legal appeals pending regarding these trade union officials.