Seguimiento dado a las recomendaciones del Comité y del Consejo de Administración - Informe núm. 353, Marzo 2009

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

1. 286. The Committee last examined this case, involving allegations of anti-union persecution against members of the Montevideo Teachers’ Association (ADES), at its November 2007 meeting [see 348th Report, paras 1147–1165]. On that occasion, the Committee expected that the investigations under way would determine why the management of Liceo No. 4 in Montevideo had imposed sanctions and taken various measures against the members of ADES mentioned by name in the complaint, and requested the Government, if they were found to have occurred for anti-union reasons, to take measures to lift them immediately. Furthermore, the Committee hoped that the proceedings would be concluded very soon, and asked the Government to keep it informed of the final result of the investigations under way and of any related appeals lodged.
2. 287. In a communication dated 26 August 2008, the Government states the following regarding the actions carried out before the Secondary Education Council (CES) as a result of the complaints lodged against the teachers Dinorah Siniscalchi, Pedro Balbi, Adriana Romano, Winston Mombrú and Fernando Moreno, which led to them being “prejudiced in their employment as a consequence of the normal exercise of trade union activities”, the legal basis of which is provided by Article 4(1) and (2) of ILO Convention No. 151:
   • – Administrative investigation carried out at Liceo No. 4, in the light of the events involving Dinorah Siniscalchi: (a) the procedure followed was in accordance with Ordinance No. 10; (b) cause: the head teacher of Liceo No. 4 issued a verbal warning to the teacher in question after she made statements of a political nature in her classroom, commenting that the father of a female student (complainant) was a National Party candidate; (c) the CES annulled the warning issued by the head teacher and started an administrative investigation to determine responsibility; (d) as a result of that investigation, it was found that the teacher was responsible for a violation of the Teaching Staff Rules as regards the requirement to remain fit to perform her duties and carry out her duties in a dignified, effective and responsible manner, as well as complying and ensuring compliance with the legal provisions and rules of the teaching body and respecting the hierarchical order (section 3(a) and (g)); the CES disciplined the teacher by issuing a written warning, to be noted on her record (section 66(b) of the Teaching Staff Rules); and (e) it was not the head teacher who disciplined the teacher but rather the CES itself, following an administrative investigation.
   • – Pre-trial proceedings against Pedro Balbi: (a) these disciplinary proceedings were instituted in the light of certain incidents involving Mr Balbi, including physical and verbal aggression directed at the head teacher on the steps of Liceo No. 4 in front of teachers and students, this being proved during the first stage of the procedure; (b) Mr Balbi’s behaviour was a clear violation of the duties of a teacher (section 3(a) and (g) of the Teaching Staff Rules) and he was consequently suspended by the CES for 15 days; and (c) the proceedings were conducted in accordance with the established rules and the teacher enjoyed all the guarantees of due process. He thus had recourse to the respective administrative channel through which he could have challenged the outcome of the proceedings.
   • – Teaching performance scores awarded to teachers Adriana Romano, Dinorah Siniscalchi, Pedro Balbi, Winston Mambrú and Fernando Moreno: (a) the complainant believes that the scores awarded to the teachers by the management for the 2004 and 2005 periods constituted a violation of freedom of association; the teachers were being victimized because their annual assessment scores had been reduced, and this clearly constituted persecution; (a) (1) when assessing teachers, the management use the same assessment form for all staff members. This form refers only to educational and pedagogical matters. Assessments carried out by the management cover issues regarding teaching performance and duties, and never refer to trade union membership or activity; (a) (2) the scores awarded did not in any way prejudice the teachers concerned. First, the assessment is preliminary in nature and may be challenged by the party concerned. Secondly, if the teacher objects to the assessment, the head teacher considers the objection and, if necessary, refers it to the relevant assessment board so that it can be evaluated and confirmed or adjusted. If the original score is upheld and confirmed by the CES, the party concerned has recourse to the relevant administrative channel and, if necessary, may take his case to the Administrative Tribunal. In the case of the teachers in question, none of them were prejudiced in terms of their position on the grade scale.
3. 288. According to the Government, the sanctions imposed against Pedro Balbi and Dinorah Siniscalchi were the result of a disciplinary procedure provided for under the regulations governing the administration and adopted by the CES, in accordance with the powers granted by the constitution and by law. The scores awarded to the teachers by the head teacher were determined by their teaching performance, not their union membership, and their placement on the professional grade scale was in no way affected by their annual assessment scores. The secondary education authorities exercised due oversight over the management’s disciplinary procedures, in accordance with the Teaching Staff Rules (the relevant and definitive ordinances within the constitutional order), and the teachers enjoyed all the guarantees afforded by the rule of law regarding their right to a defence should they have grievances concerning any decisions by the CES. Consequently, the trade union’s claim that there is an institutional strategy aimed at limiting the exercise of freedom of association cannot be considered valid. On the contrary, the existence of trade union posters, the recognition of trade unions by the authorities, the “clear lines of trade union communication” between the central trade union body and branches in schools, the holding of teaching staff assemblies, and so on, are all proof of the constitutional guarantees in place. Furthermore, these elements also serve to show that the very highest authorities are doing all that they can to ensure that freedom of association is respected. Moreover, the complainants have recourse to legal remedies in defence of their rights.
4. 289. The Government states that: (a) under the terms of the ruling issued by the General Inspectorate of Labour and Social Security, the trade union’s claim that there is an institutional strategy in place aimed at limiting the exercise of freedom of association cannot be considered valid for the reasons given in the ruling; (b) however, the General Inspectorate of Labour and Social Security has informed the National Public Education Administration–Secondary Education Council (ANEP–CES) that, when the compulsory preliminary assessment system was implemented by management, no thought was given to the special situation that prevailed at Liceo No. 4 and, as a result, the fundamental rights of the teaching staff as a whole were undermined, especially those of employees who resorted to force, directly affecting the working environment; and (c) owing to this method of assessment, a high-ranking management team, which had to address critical situations that brought into question its approach, carried out assessments of the work of the teachers involved (in accordance with the Teaching Staff Rules) when it was clear that that team lacked the “technical objectivity” required for the task.
5. 290. The Committee takes note of this information.