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Effect given to the recommendations of the committee and the Governing Body
Effect given to the recommendations of the committee and the Governing Body- 40. The Committee recalls that this case, submitted in December 2011 and last examined in October 2015, concerns the transfer and subsequent dismissal of three trade union officials by the Ministry of Education on the pretext of restructuring. In its 376th Report, of October 2015, the Committee took note of the reinstatement of the trade union official Mr Randy Arturo Hernández López and requested the Government to keep it informed of any final decisions handed down concerning the industrial actions brought by the trade union officials Mr William José Morales Peralta and Mr Orlando José Jiménez Hernández. The Committee requested the complainant organization, the Administrative Workers’ and Teachers’ Union of the Ministry of Education (SINTRADOC) to provide information on the status of the appeal submitted to the labour courts for the failure to pay Mr Randy Arturo Hernández López’s 13th salary.
- 41. In its communications of 15 December 2015, 5 December 2016, 9 February and 11 August 2017, 19 March and 8 October 2018, 25 March 2019 and 9 March and 21 September 2020, SINTRADOC states that: (i) the appeal for the failure to pay Mr Randy Arturo Hernández López’s 13th salary is still pending; and (ii) although the reinstatement of Mr Orlando José Jiménez Hernández was ordered in a decision dated 24 April 2015, the State filed an appeal and, by a decision dated 18 April 2016, the National Labour Appeals Tribunal overturned the decision of the first instance and rejected the claim for reinstatement and for the payment of outstanding wages. The complainant organization states that the official filed an application for amparo (protection of constitutional rights) with the Supreme Court of Justice, but that this application was denied. The complainant organization requests the Committee to find in favour of Mr Orlando José Jiménez Hernández awarding him an amount in Nicaraguan córdobas or its equivalent in dollars for the damages caused to him by the State for having dismissed him arbitrarily and unilaterally, in violation of his trade union rights. The complainant organization also states that, despite having made a request to update the certification of the new executive committee on 28 July 2017, and despite having taken the necessary steps, the Directorate of Trade Union Associations of the Ministry of Labour had not granted the requested certification.
- 42. In its communications of 19 January and 25 May 2016, 2 October 2018, 30 May 2019 and 13 September 2021, the Government states the following:
- – Mr Randy Arturo Hernández López was reinstated to his post on 12 February 2014. On 23 November 2015, the National Labour Appeals Tribunal, which is the highest labour court, handed down a final decision rejecting the appeal filed by the trade union official in relation to the non-payment of the 13th salary.
- – With regard to Mr Orlando José Jiménez Hernández, the Government states that there was no infringement of any labour or trade union rights, since, as the associated documents show, the Ministry of Education requested the Ministry of Labour to authorize the cancellation of the individual contract for just cause in view of a failure to comply with labour obligations in accordance with the law. The Ministry of Labour authorized the cancellation of the individual contract by Resolution No. 83/2010 and the Ministry of Education gave notice of the cancellation of the contract as from 19 August 2011. Exercising his rights, the official filed a claim for reinstatement, and the Ministry of Education filed an appeal against the corresponding decision to the National Labour Tribunal. By means of Final Decision No. 475/2016, dated 18 April 2016, the National Labour Appeals Tribunal rejected the claim for reinstatement and for the payment of outstanding wages, but upheld his right to be paid social benefits such as holidays and the 13th salary; furthermore, the operative part of the decision, which has the status of res judicata, clearly states, in addition to rejecting Mr Jiménez Hernández’s claim, that the payment of costs is not required. Consequently, there are no grounds whatsoever for his request for a financial award in Nicaraguan córdobas or the equivalent in dollars. The Government also states that Mr Jiménez Hernández filed an application for amparo with the Constitutional Chamber of the Supreme Court of Justice but that this application was not granted. The Government emphasizes that Mr Jiménez Hernández’s claim has no legal basis whatsoever.
- – In relation to Mr William José Morales Peralta, the Government states that, on 19 October 2016, the Sixth District Labour Court of Managua closed the proceedings relating to the claim for reinstatement and for the payment of outstanding wages. On 9 November 2015, the judicial authority had requested the complainant to provide a contact address in the city of Managua and, as he failed to do so, the judicial authority closed the proceedings in October 2016.
- – Regarding the application for the certification of SINTRADOC’s executive committee in 2017, the Government states that it was on the grounds that the union failed to comply with the legal requirements, in terms of the documentation submitted to the Directorate of Trade Union Associations with the aim of updating its executive committee, that certification was not granted (the Government has attached documentation on the requirements that were not met, such as inconsistency in the dates indicated by the union).
- 43. The Committee recalls that the transfer and subsequent dismissal of the three trade union officials took place more than a decade ago and notes that, according to the associated documentation sent by the complainant organization and by the Government, the issues pending since the last examination of the case have now been resolved.
- 44. With regard to the appeal that was filed by Mr Randy Arturo Hernández López (reinstated in 2014) for the non-payment of the 13th salary, the Committee notes that, as reported by the Government, on 23 November 2015, the National Labour Appeals Tribunal rejected the appeal.
- 45. With regard to Mr Orlando José Jiménez Hernández, the Committee notes that, as reported by the Government and the complainant organization, on 18 April 2016, the National Labour Appeals Tribunal overturned the decision of the first instance ordering reinstatement and the payment of outstanding wages. The Government has attached copies of the decisions of the first and second instance. The Committee notes that, in the first instance, the court considered that the trade union official held the position of national supervisor of education and that, accordingly, the Teaching Careers Act should be applied, and therefore the process of cancelling the contract should be handled by the National Teaching Committee and not the Ministry of Labour as happened in this case. In the second instance, the tribunal held that it was sufficient only to comply with the requirements of the Labour Code (in other words, for the dismissal to be based on just cause attributable to the official and to have the prior authorization of the Ministry of Labour) without taking into account the special procedure under the Teaching Careers Act. The Committee notes that the tribunal did not order the payment of costs and that the application for amparo before the Supreme Court of Justice was denied. The Committee further notes that it does not appear from the above-mentioned documents that the transfer and subsequent dismissal of the official were on anti-union grounds or that there was an infringement of labour law.
- 46. With regard to Mr William José Morales Peralta, the Committee notes that, according to the Government, in 2016 the proceedings relating to the claim for reinstatement and for the payment of outstanding wages were closed.
- 47. In the light of the foregoing, and taking due note of the extensive documentation provided both by the complainant organization and by the Government subsequent to the last examination of the case, and of the fact that when it first examined this case, the Committee considered that it had insufficient information to conclude that the transfer and subsequent dismissal of the three officials were on anti-union grounds, the Committee considers that this case is closed and will not pursue its examination of it.
Status of cases in follow-up
Status of cases in follow-up- 48. Finally, the Committee requests the Governments and/or complainants concerned to keep it informed of any developments relating to the following cases.
| Case No. | | Last examination on the merits | | Last follow-up examination |
| 2096 (Pakistan) | | March 2004 | | October 2020 |
| 2153 (Algeria) | | March 2005 | | June 2021 |
| 2603 (Argentina) | | November 2008 | | November 2012 |
| 2715 (Democratic Republic of the Congo) | | November 2011 | | June 2014 |
| 2745 (Philippines) | | October 2013 | | October 2019 |
| 2749 (France) | | March 2014 | | – |
| 2797 (Democratic Republic of the Congo) | | March 2014 | | – |
| 2807 (Islamic Republic of Iran) | | March 2014 | | June 2019 |
| 2869 (Guatemala) | | March 2013 | | October 2020 |
| 2871 (El Salvador) | | June 2014 | | June 2015 |
| 2889 (Pakistan) | | March 2016 | | October 2020 |
| 2925 (Democratic Republic of the Congo) | | March 2013 | | March 2014 |
| 3003 (Canada) | | March 2017 | | – |
| 3011 (Turkey) | | June 2014 | | November 2015 |
| 3024 (Morocco) | | March 2015 | | March 2021 |
| 3036 (Bolivarian Republic of Venezuela) | | November 2014 | | – |
| 3046 (Argentina) | | November 2015 | | – |
| 3054 (El Salvador) | | June 2015 | | – |
| 3078 (Argentina) | | March 2018 | | – |
| 3081 (Liberia) | | October 2018 | | October 2020 |
| 3098 (Turkey) | | June 2016 | | November 2017 |
| 3100 (India) | | March 2016 | | – |
| 3104 (Algeria) | | March 2017 | | June 2021 |
| 3107 (Canada) | | March 2016 | | – |
| 3121 (Cambodia) | | October 2017 | | October 2020 |
| 3142 (Cameroon) | | June 2016 | | October 2020 |
| 3167 (El Salvador) | | November 2017 | | – |
| 3180 (Thailand) | | March 2017 | | March 2021 |
| 3182 (Romania) | | November 2016 | | – |
| 3202 (Liberia) | | March 2018 | | – |
| 3212 (Cameroon) | | October 2018 | | October 2020 |
| 3243 (Costa Rica) | | October 2019 | | – |
| 3248 (Argentina) | | October 2018 | | – |
| 3253 (Costa Rica) | | March 2019 | | June 2021 |
| 3257 (Argentina) | | October 2018 | | – |
| 3285 (Plurinational State of Bolivia) | | March 2019 | | – |
| 3288 (Plurinational State of Bolivia) | | March 2019 | | – |
| 3289 (Pakistan) | | June 2018 | | October 2020 |
| 3323 (Romania) | | March 2021 | | – |
| 3330 (El Salvador) | | March 2021 | | – |
| 3350 (El Salvador) | | March 2021 | | – |
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- 49. The Committee hopes that these Governments will quickly provide the information requested.
- 50. In addition, the Committee has received information concerning the follow-up of Cases Nos 1787 (Colombia), 1865 (Republic of Korea), 2086 (Paraguay), 2153 (Algeria), 2341 (Guatemala), 2362 and 2434 (Colombia), 2445 (Guatemala), 2528 (Philippines), 2533 (Peru), 2540 (Guatemala), 2566 (Islamic Republic of Iran), 2583 and 2595 (Colombia), 2637 (Malaysia), 2652 (Philippines), 2656 (Brazil), 2679 (Mexico), 2684 (Ecuador), 2694 (Mexico), 2699 (Uruguay), 2706 (Panama), 2710 (Colombia), 2716 (Philippines), 2719 (Colombia), 2723 (Fiji), 2745 (Philippines), 2746 (Costa Rica), 2751 (Panama), 2753 (Djibouti), 2755 (Ecuador), 2756 (Mali), 2758 (Russian Federation), 2763 (Bolivarian Republic of Venezuela), 2793 (Colombia), 2816 (Peru), 2852 (Colombia), 2882 (Bahrain), 2883 (Peru), 2896 (El Salvador), 2902 (Pakistan), 2924 (Colombia), 2934 (Peru), 2946 (Colombia), 2948 (Guatemala), 2949 (Eswatini), 2952 (Lebanon), 2954 and 2960 (Colombia), 2976 (Turkey), 2979 (Argentina), 2980 (El Salvador), 2982 (Peru), 2985 (El Salvador), 2987 (Argentina), 2994 (Tunisia), 2995 (Colombia), 2998 (Peru), 3006 (Bolivarian Republic of Venezuela), 3010 (Paraguay), 3016 (Bolivarian Republic of Venezuela), 3017 (Chile), 3019 (Paraguay), 3020 (Colombia), 3022 (Thailand), 3026 (Peru), 3030 (Mali), 3032 (Honduras), 3033 (Peru), 3040 (Guatemala), 3043 (Peru), 3055 (Panama), 3056 (Peru), 3059 (Bolivarian Republic of Venezuela), 3061 (Colombia), 3065, 3066 and 3069 (Peru), 3072 (Portugal), 3075 (Argentina), 3077 (Honduras), 3093 (Spain), 3095 (Tunisia), 3096 (Peru), 3097 (Colombia), 3102 (Chile), 3103 and 3114 (Colombia), 3119 (Philippines), 3131 and 3137 (Colombia), 3146 (Paraguay), 3150 (Colombia), 3162 (Costa Rica), 3164 (Thailand), 3170 (Peru), 3171 (Myanmar), 3172 (Bolivarian Republic of Venezuela), 3183 (Burundi), 3188 (Guatemala), 3191 (Chile), 3194 (El Salvador), 3220 (Argentina), 3236 (Philippines), 3240 (Tunisia), 3272 (Argentina), 3278 (Australia), 3279 (Ecuador), 3283 (Kazakhstan), 3286 (Guatemala), 3287 (Honduras), 3297 (Dominican Republic), 3314 (Zimbabwe), 3316 (Colombia), 3317 (Panama), 3320 (Argentina), 3341 (Ukraine), 3343 (Myanmar) and 3347 (Ecuador), which it will examine as swiftly as possible.
Closure of follow-up cases
Closure of follow-up cases- 51. In its November 2018 report (GB.334/INS/10), the Committee informed the Governing Body that, from that moment onwards, any cases in which it was examining the follow up given to its recommendations, for which no information has been received either from the Government or from the complainant for 18 months (or 18 months from the last examination of the case) would be considered closed. At its current session, the Committee applied this rule to the following case: 3243 (Costa Rica).
