Rapport définitif - Rapport No. 374, Mars 2015

1. 673. The complaint is contained in a communication from the Confederation of Workers of Peru (CTP) dated 17 October 2012; this organization submitted new allegations in a communication dated 13 March 2013. The Unitary Trade Union of Workers of the Banco de la Nación (SUTBAN) submitted its complaint in a communication dated 11 January 2013 and new allegations in communications dated 10 June and 1 August 2013, as well as additional information in a communication dated 4 August and 25 November 2014.
2. 674. The Government sent its observations in communications dated 25 April, 3 October and 21 November 2013, as well as communications dated 4 and 15 August, 20 October and 14 November 2014.
3. 675. Peru has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), the Labour Relations (Public Service) Convention, 1978 (No. 151), and the Collective Bargaining Convention, 1981 (No. 154).

A. The complainants’ allegations

1. 676. In its communications of 17 October 2012 and 13 March 2013, the CTP alleges the anti union dismissal of Ms Rosa Isabel Méndez Tandaypán by the Banco de la Nación on 10 October 2012, without knowing that she was a member of the National Labour Council; that she was a member of the workers’ delegation to the International Labour Conference in 2012; that she was a member of the negotiating committee for the list of claims submitted by the trade union of the Banco de la Nación in 2011 (which remains open as it is at the arbitration stage and for which reason the Banco de la Nación had granted her union leave until 30 June 2012); and that she had been the Vice-President of the CTP since 2011. The CTP states that, although the Banco de la Nación argues that her dismissal was attributable to an unjustified absence from work of more than three days, her dismissal was in fact attributable to her intense and successful involvement in trade union activities within the Banco de la Nación since her appointment as General Secretary in 2007 and later as Defence Secretary of the primary trade union in 2009. Her trade union activities include the conclusion of several collective agreements, the reinstatement of hundreds of workers dismissed during the 1990s, giving hundreds of workers access to indefinite contracts, and the filing of criminal complaints against high-ranking officials of the Banco de la Nación for anti-union practices. The CTP highlights that the dismissal of the trade union leader Ms Méndez Tandaypán also occurred in the context of an internal union dispute, which has already resulted in legal proceedings being brought before the judicial authority against the new executive committee of the trade union elected at the Ordinary National Congress of 27 November 2011 (Ms Méndez Tandaypán had previously filed complaints with the Ministry of Labour against this executive committee) before a ruling invalidating the election of the new executive committee could be handed down.
2. 677. Moreover, in its communications of 11 January, 10 June and 1 August 2013, SUTBAN alleges the anti-union transfer of its trade union delegate, who is also a member of the national electoral committee (for the elections of the executive committee), Ms Nancy Raquel Navarro Hoyos, as the result of a decision taken by the Banco de la Nación on 24 September 2012 and a series of notarized letters constituting acts of harassment and intimidation. SUTBAN states that her transfer constitutes a direct violation of the legislation protecting trade union leaders from transfers and dismissal, but also of the substantive regulations governing transfers (the exigencies of service require the transfer, which is not true in this case, as the receiving department is not in favour of the transfer; not knowing that the trade union leader had been accorded “relocated” status following her dismissal under the Fujimori Government or that she had been subsequently relocated to the Banco de la Nación; a change in post that involves performing tasks of a lower level, and so forth) and of the regulations governing health in the workplace (the psychological abuse suffered by the trade union leader at the hands of her line manager, which has been the cause of several illnesses, and so forth). According to the complainant organization, all these irregularities show that the aim of transferring the trade union leader was to cause her harm and to prevent her from performing her trade union duties. SUTBAN states that, following the submission of the complaint, the Ministry of Labour and Employment Promotion conducted an investigation within the Banco de la Nación, on the basis of which it ordered the reinstatement of the trade union leader to the post that she had occupied previously and fined the Banco de la Nación for serious offences after ascertaining that it had deliberately prevented the trade union leader from performing her duties as a trade union delegate. However, the complainant organization states that, following a strike that took place on 8 and 9 May 2009, the trade union leader was obliged to undergo a performance review for the year 2012 in which her section manager gave her a negative assessment, the same manager who had harassed this trade union leader in the past. According to the allegations, the trade union leader was subsequently subjected to public defamation and had her female sexual intimacy violated, which prompted her to file a criminal complaint in accordance with the normal procedure.
3. 678. In its communications of 4 August and 25 November 2014, SUTBAN reiterates, once again, the anti-union nature of the transfer of its trade union leader, Ms Nancy Raquel Navarro Hoyos, as was recognized by the labour administrative authority, and indicates that the articles published in the journal “La actualidad empresarial” (Business News) also recognized the anti-union nature of the transfer.

B. The Government’s reply

1. 679. In its communications of 25 April, 3 October and 21 November 2013, and 25 November 2014 concerning the alleged dismissal of Ms Rosa Isabel Méndez Tandaypán by the Banco de la Nación, the Government states that this individual was performing her functions under the protection of the labour regulations contained in Legislative Decree No. 728, adopted by Supreme Decree No. 003-97-TR, the Act on Labour Productivity and Competitiveness. In order to understand fully the context that led to the dismissal of Ms Méndez Tandaypán, it is important to note that, in accordance with the collective agreements concluded between the Banco and the complainant union, the trade union is entitled to ten periods of indefinite union leave per year. In the light of this fact and based on the requests made by the trade union, Ms Méndez Tandaypán was granted union leave between 12 February 2008 and 30 June 2012. However, the Government states that the General Secretary of the complainant union wrote to the Banco on 30 November 2011 informing it that a decision had been taken to dismiss Ms Méndez Tandaypán from the trade union and the negotiating committee for the 2011 list of claims, and that she was no longer a representative of the trade union. In Circular No. 011-2012 of 24 January 2012, the General Secretary of the trade union published the names of the new members of its executive committee for the period 28 December 2011 to 27 December 2013, from which it is clear that Ms Méndez Tandaypán is not a member of the executive committee. In another letter from the trade union dated 4 June 2012, the General Secretary of the trade union reported that, despite the fact that Ms Méndez Tandaypán was no longer a trade union leader, the Banco was continuing to grant her union leave, which prompted a request for information on the union leave granted to the individual in question.
2. 680. As to Ms Méndez Tandaypán’s dismissal, in a letter dated 13 July 2012, the Banco de la Nación informed Ms Méndez Tandaypán that her absences from work between 2 and 13 July were tantamount to the abandonment of her post, as the union leave granted to her had expired on 30 June 2012, and gave her a period of six days to submit her deposition. While her deposition did not refute the serious offence of unjustified absence from work for more than three days that had been attributed to her, no decision was taken to dismiss her; rather, she was urged to return to work. Despite knowing that the union leave granted to her would expire on 30 June 2012 and having received the abovementioned letter notifying her of that fact, Ms Méndez Tandaypán continued to absent herself from work without just cause.
3. 681. Furthermore, having been requested on several occasions to submit her deposition, she finally did so in a letter dated 21 September 2012, which did not refute her unjustified absences from work for more than three days, for which reason, in a letter dated 4 October 2012, the Banco informed her of its decision to dismiss her for having committed the abovementioned serious offence, which is referred to in article 25, subparagraph (h) of the single consolidated text of Legislative Decree No. 728, which contains regulations that apply to Ms Méndez Tandaypán. It is for this reason that the dismissal could not be found to constitute an unjust act on the part of the institution, as it is the result of the application of the penalty provided for in the regulations for a serious offence. Moreover, by virtue of Inspection Order No. 16699-2012-MTPE/1/20.4, the Labour Inspection Directorate of the Ministry of Labour and Employment Promotion ordered an investigation to be conducted into the case of Ms Méndez Tandaypán, which culminated in the publication of an inspection report in which it was stated that the Banco had not violated any social or labour regulations. Lastly, being a member of a negotiating committee does not entitle the individual to indefinite union leave when, in fact, the relevant legislation only requires the employer to grant a maximum of 30 days of union leave per year. Ms Méndez Tandaypán was entitled to attend the meetings of the negotiating committee but not to indefinite union leave.
4. 682. The Government adds that the union leave granted to Ms Méndez Tandaypán permanently expired on 30 June 2012. In this regard, it should be noted that there is no agreement or other document that requires the Banco to grant union leave with or without pay to leaders of primary trade unions, as the granting of such leave is governed by the tenth clause of the 2010 labour agreement concluded between the Banco and the trade union. It should also be borne in mind that union leave is granted in agreement with the duly accredited legal representative of the trade union, who, to date, in accordance with the provisions laid down by the General Registration Sub-directorate of the Registry of Trade Unions of Public Servants of the Ministry of Labour and Employment Promotion, is another worker (Mr Jorge Artemio Calderón Toro). In addition, it should be noted that union leave is granted to allow leaders of primary trade unions to attend compulsory meetings and cannot be granted to more than one person per enterprise. As the complainant organization is aware, it is currently being granted to another worker.
5. 683. Lastly, the Government states that Ms Méndez Tandaypán has initiated legal proceedings against the Banco under Case No. 5699-2012 before the Third Labour Court of La Libertad, requesting reinstatement on the grounds of invalid dismissal and compensation for arbitrary dismissal. The complainant (Ms Méndez Tandaypán) is currently working for the Banco under a provisional court order.
6. 684. According to the information provided by the Banco de la Nación in Communication EF/92.2000 No. 243-2013, Ms Nancy Raquel Navarro Hoyos joined the staff of the Banco on 15 August 2008 as a professional grade I analyst in the taxation unit of the accounting department, where she remained until her transfer and subsequent appointment as a technical credit specialist, which was still a professional grade post. The Government states that, according to the enterprise, Ms Navarro Hoyos was not reclassified to a lower grade, nor was her salary cut.
7. 685. As to the anti-union transfer of the trade union leader Ms Navarro Hoyos, the Government states that (in response to the statement of the complainant union to the effect that the Ministry of Labour and Employment Promotion issued Directorate Resolution No. 450 2013-MTPE/1/20.43, in which it confirmed that the transfer of Ms Navarro Hoyos constitutes an act that was unlawful, affected her dignity and also separated her from the workers she represented; in short, a hostile act) the Labour Inspection Directorate, under Offence Notification No. 207-2013, imposed a fine on the Banco amounting to 5,735 nuevos soles (PEN) for acts of hostility; and, under Sub-directorate Resolution No. 431-2013-MTPE/1/20.43, another fine amounting to PEN3,700 for an extremely serious violation of the legislation in force, a fine which was partially revoked and subsequently confirmed in all other aspects by Directorate Resolution No. 450 2013 MTPE/1/20.4. The Government also states that, under Ministerial Resolution No. 235-2008-TR of 6 August, a decision was taken to reinstate her to her post without prejudice to the Banco’s legal authority to relocate staff to meet the exigencies of its services.
8. 686. The Government adds that, as regards Directorate Resolution No. 450, and according to the information provided by the general management of the Banco in a communication dated 15 October 2013, the Labour Division of the Legal Advice Department of the Banco has filed an administrative appeal against the decision of the Ministry of Labour.
9. 687. The Government states that the legal proceedings initiated by Ms Navarro Hoyos against the Banco are in their final stage and before the 11th Specialized Transitory Labour Court of the judiciary, for which reason it is the responsibility of the judiciary to rule on this case and, if it finds that the fundamental rights of Ms Navarro Hoyos have been violated, it shall determine the appropriate reparation measures. In its communications of 4 and 15 August and 20 October 2014, the Government states that the Banco has also lodged an appeal against the administrative resolution which imposed the fine.
10. 688. As to SUTBAN’s allegation that Ms Navarro Hoyos has been the victim of systematic and continuous acts of hostility, the Government states that Ms Navarro Hoyos has filed the relevant criminal complaints and that the judiciary is currently examining the facts, and that the parties involved are being provided with all the guarantees of due process to allow them to submit any evidence they consider to be relevant in the exercise of the right to defence in a democratic State such as Peru.
11. 689. However, the Government states that the supranational protection system cannot and should not be used as a fourth court, given the system’s subsidiary nature, when internal legal proceedings initiated on the same grounds that formed the basis of the complaint at the international level are under way.

C. The Committee’s conclusions

1. 690. The Committee notes that the complainant organization CTP finds the alleged dismissal of the trade union leader Ms Rosa Isabel Méndez Tandaypán to constitute an act of anti union discrimination that it attributes to her intense and successful involvement in trade union activities over a number of years; to her being a member of the negotiating committee for the 2011 list of claims (which remains open as it is at the arbitration stage); and to a criminal complaint that she submitted against high-ranking officials of the Banco de la Nación for anti-union practices. The Committee notes that the complainant organization highlights that the dismissal occurred in the context of an internal union dispute, which has been brought before the judicial authority in the form of legal proceedings against the new executive committee of the trade union (November 2011), and that the Banco’s decision to dismiss Ms Méndez Tandaypán was taken before the judicial authority could rule on the case and before the collective bargaining of the list of union claims for 2011 could be completed.
2. 691. The Committee takes note of the Government’s statements to the effect that: (1) the union leave granted to Ms Méndez Tandaypán on 12 February 2008 expired on 30 June 2012; (2) the General Secretary of the trade union informed the Banco on 30 November 2011 that a decision had been taken to dismiss Ms Méndez Tandaypán from the trade union and the negotiating committee for the 2011 list of claims, and that she was no longer a representative of the trade union, the subsequent General Secretary informing the Banco on 4 June 2012 that Ms Méndez Tandaypán was no longer a trade union leader and that, despite that fact, the Banco was continuing to grant her union leave, for which reason the trade union requested it to justify the use of union leave (according to the Government, the trade union leader was entitled to attend the meetings of the negotiating committee but not to indefinite union leave); (3) despite the fact that her union leave expired on 30 June 2012, Ms Méndez Tandaypán was absent from work between 2 and 13 July 2012 and was given a period of six days to submit her deposition but no decision was taken to dismiss her, rather she was urged to return to work; she subsequently continued to absent herself from work without just cause and only submitted her deposition on 21 September 2012; (4) under these circumstances, the Banco informed Ms Méndez Tandaypán on 4 October 2012 of its decision to dismiss her for having committed a serious offence, which is referred to in article 25, subparagraph (h) of the single consolidated text of Legislative Decree No. 728; and (5) the investigation conducted by the labour inspectorate into the dismissal concluded that the Banco had not violated any social or labour regulations. Lastly, the Committee notes that the Government highlights that Ms Méndez Tandaypán was not a leader of the National Trade Union of Workers of Banco de la Nación (SINATBAN) and did not have trade union immunity when she was dismissed.
3. 692. Taking into account the Government’s explanations, the Committee requests the Government to take the necessary remedial measures if the proceedings initiated by Ms Méndez Tandaypán requesting her dismissal to be declared invalid determine there was an anti-union motive.
4. 693. As to the allegation concerning the unlawful and anti-union transfer of the trade union leader Ms Navarro Hoyos, the Committee takes note of the allegations that the trade union leader, Ms Navarro Hoyos, has filed judicial, labour and criminal complaints against her supervisor for systematic and continuous acts of hostility, which, according to the allegations, have been the cause of illness and a negative performance review. The Committee notes with interest the Government’s statements indicating that under Resolution No. 235-2008-TR of the Labour Ministry a decision was taken to reinstate her to her post. The Committee notes that the administrative authority imposed a fine on the Banco for acts of hostility against the trade union leader, against which the Banco has appealed.