Seguimiento dado a las recomendaciones del Comité y del Consejo de Administración - Informe núm. 359, Marzo 2011

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

1. 155. The Committee last examined this case at its meeting in March 2010 [see 356th Report, paras 165–167]. On that occasion, the Committee had requested the Government to provide information on the final outcome of the case of dismissal of Mr Zagrajek, trade union leader at Frito Lay Ltd, and to indicate whether he was reinstated pending appellate proceedings.
2. 156. In its communication dated 31 August 2010, the Government indicates that the case filed by Mr Zagrajek against Frito Lay Ltd has not yet been completed. It further indicates that appeal proceedings in the Regional Court in Warsaw have been deferred until 16 June 2010 due to a large number of files of the case (17 volumes) that had to be handed over by the District Prosecutor’s Office of Wola in Warsaw to the court for retrial. The Government also indicates that the court had heard nine witnesses but due to the absence of one witness, the trial has been adjourned until 28 July 2010. The Government further indicates that the court ordered the representative of the Frito Lay Ltd to submit the list of employees of the plant within 14 days as of 30 September 2005.
3. 157. With regard to the question of reinstatement of Mr Zagrajek, the Government indicates that neither the Ministry of Justice nor the labour courts collect the data on employers’ compliance with the legally binding decisions on the reinstatement of employees. The Government explains that if employers fail to comply voluntarily with the judicial order on reinstatement, the claims for judicial enforcement can be brought before a court. The Government states that no such claims have been registered in respect of this case.
4. 158. The Committee notes the information provided by the Government. With regard to the case concerning the reinstatement of Mr Zagrajek pending before the Regional Court in Warsaw, the Committee once again recalls with regret that the facts of this case date back to 2005 and emphasizes that justice delayed is justice denied [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, para. 105]. It further recalls that the membership of a State in the International Labour Organization carries with it the obligation to respect in national legislation and practice freedom of association principles and the Conventions which the State has freely ratified, and that the ultimate responsibility for ensuring respect for the principles of freedom of association lies with the Government [see Digest, op. cit., paras 16–17]. The Committee emphasizes that cases concerning anti-union discrimination contrary to Convention No. 98 should be examined rapidly, so that the necessary remedies can be really effective. An excessive delay in processing cases of anti-union discrimination, and in particular a lengthy delay in concluding the proceedings concerning the reinstatement of the trade union leaders dismissed by the enterprise, constitute a denial of justice and therefore a denial of the trade union rights of the persons concerned. The Committee considers that the longer it takes for such a procedure to be completed, the more difficult it becomes for the competent body to issue a fair and proper relief, since the situation complained of has often been changed irreversibly, people may have been transferred, etc., to a point where it becomes impossible to order adequate redress or to come back to the status quo ante. The Committee recalls that, in a case in which proceedings concerning dismissals had already taken 14 months, the Committee requested the judicial authorities, in order to avoid a denial of justice, to pronounce on the dismissals without delay and emphasized that any further undue delay in the proceedings could in itself justify the reinstatement of these persons in their posts [see Digest, op. cit., paras 821, 826 and 827]. The Committee therefore expects that the judicial proceedings in the case of dismissal of Mr Zagrajek will be concluded without further delay and once again requests the Government to keep it informed of its final outcome. The Committee further requests the Government to indicate whether Mr Zagrajek was reinstated pending the appellate proceedings, and if not, it urges the Government to take the necessary steps to ensure his full reinstatement without loss of pay.