Suites données aux recommandations du comité et du Conseil d’administration - Rapport No. 367, Mars 2013

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

1. 67. The Committee last examined this case, concerning the dismissal in 2007 of a trade union official from the Directorate General of Taxes (DGI), at its March 2011 meeting [see 359th Report, paras 114–116]. On that occasion, the Committee noted that the legal proceedings under way concerning the dismissal of the trade union official, Mr Chávez Mendoza, were before the Labour Chamber of the Court of Appeals of the Judicial District of Managua and, regretting the long time that had elapsed since the dismissal of the trade union official, expressed the firm hope that the judicial authority in the second instance would issue a ruling in the very near future.
2. 68. In a communication dated 17 October 2011, the Government reported that: (1) the case of Mr Chávez Mendoza had concluded with a decision being handed down by the Labour Chamber of the Court of Appeals of Managua in favour of the worker; (2) according to the assistant labour prosecutor of the DGI, it was impossible to comply with the decision of the judicial authority, and consequently an application was made to the First Labour Court of the Judicial District of Managua to cancel the employment relationship, in accordance with the provisions of section 46 of the Labour Code; and (3) the judicial authority found the employment relationship between the worker and the DGI to be ended and ordered that the institution pay him his final settlement pay, due under the law in accordance with abovementioned section 46 of the Labour Code, without prejudice to the right of Mr Chávez Mendoza to claim payment of any other labour benefits due.
3. 69. The Committee notes this information. The Committee recalls that when it examined this case in March 2008 and March 2010 it emphasized that Mr Chávez Mendoza was a trade union official and hence should have enjoyed the particular protection afforded by trade union immunity, according to which a trade union official may not be dismissed without the authorization of the Ministry of Labour, a condition which was not fulfilled in this case. The Committee observes that the Government does not refute the failure to comply with the law with respect to the special protection to which union officials are entitled. The Committee notes that, in general, in various complaints against the Government of Nicaragua pending before the Committee concerning anti-union dismissals, the judicial authorities have ordered the reinstatement of the dismissed trade union officials or members and that there has been a failure to comply with those rulings as a result of the payment of compensation prescribed by the law [see, for example, the 359th Report, Case No. 2613]. The Committee once again expresses its concern at the fact that it would appear, even in the cases where it was clear that there had been an anti-union dismissal or that the dismissal had not respected legislation relating to the special protection to which union officials should be entitled, that the employer can choose between reinstatement or payment of compensation equivalent to the amount due for the worker’s years of service. In this regard, the Committee stresses that no one should be subjected to discrimination or prejudice with regard to employment because of legitimate trade union activities or membership, and the persons responsible for such acts should be punished [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 772]. In addition, on a number of occasions the Committee has emphasized that in the event of the dismissal of trade union officials or members on account of their trade union membership or activities, the best solution is the reinstatement of the workers in their posts and that, in cases where an independent competent body determines, for compelling and objective reasons, that reinstatement in that specific post is no longer possible, steps must be taken to ensure that the complainants receive full and adequate compensation and that there are sufficiently dissuasive sanctions in place to deter anti-union dismissals. The Committee requests the Government to ensure that these principles are upheld in the future and to examine in full consultation with the most representative employers’ and workers’ organizations, the possibility of amending section 46 of the Labour Code.