Rapport définitif - Rapport No. 393, Mars 2021

1. 434. The complaint is contained in a communication dated 31 July 2019, presented jointly by Public Services International (PSI) and the National Confederation of Public Servants of Ecuador (CONASEP). The PSI presented additional allegations in a communication dated 3 December 2019.
2. 435. The Government sent its observations in communications dated 23 September 2019, 11 March 2020 and 2 February 2021.
3. 436. Ecuador has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainants’ allegations

1. 437. In a communication dated 3 July 2019, the complainants allege that the President of the Association of Public Customs Officials of Ecuador (ASPAE) and the General Secretary of the National Confederation of Public Servants of Ecuador (CONASEP), Mr Iván Kennedy Bastidas Ordóñez, was subject to disciplinary action for legitimately carrying out his trade union duties, in violation of Article 3 of Convention No. 87, Article 1 of Convention No. 98, and the resolution of 1970 concerning trade union rights and their relation to civil liberties. The complainants allege, specifically, that: (i) on 24 January 2019, the Communications Director of the National Customs Service of Ecuador (“the public institution”) sent a memorandum regarding two posts published in January 2019 by Mr Bastidas Ordóñez on ASPAE’s social media page in which, on the one hand, he deplores the fact that the director of the public institution relies more on the national police than on her own service’s employees and that, on the other hand, the institution’s equipment and staffing levels are inadequate; (ii) the memorandum considers that the two posts constitute gross misconduct, flouting the public institution’s communications guidelines and code of ethics, as well as section 289 of the code for agencies responsible for public safety and public order (COESCOP), which include provisions for gross misconduct committed by the public officials of those agencies; (iii) on 7 April 2019, following a series of procedural steps, the public institution’s disciplinary board imposed a financial penalty on Mr Bastidas Ordóñez equivalent to 8 per cent of his monthly salary; and (iv) the administrative appeal lodged by Mr Bastidas Ordóñez was subsequently rejected.
2. 438. With regard to the above allegations, the complainants state that: (i) Mr Bastidas Ordóñez, in addition to being President of ASPAE and General Secretary of CONASEP, is PSI Coordinator in Ecuador and Director of the MERCOSUR member States’ Federation of Revenue and Customs Employees of South America; (ii) as a trade union official, he constantly uses social media to communicate with his members and with the community in general so as to keep them informed and make known the positions of the unions in question and his own views; (iii) Mr Bastidas Ordóñez is indeed the author of the social media posts that led to the disciplinary action; however, the posts did not breach any national or international regulations; (iv) the posts in question were made by Mr Bastidas Ordóñez in his capacity as trade union official on a clearly identified trade union social media platform (the ASPAE web page) and in the strict exercise of freedom of association and freedom of expression; and (v) the content of the communications published by Mr Bastidas Ordóñez are in no way humiliating, demeaning, degrading, malicious or untruthful, but they do contain criticism and comments about the management of a public institution, which the latter must accept and, if need be, refute, as part of the normal exercise of democracy.
3. 439. On the basis of the above, the complainants assert that the two posts published by the trade union official cannot have violated section 289(22) of the COESCOP, given that they are far removed from any of the three situations covered by the provision that constitute gross misconduct (issuing unsubstantiated information on the institution, hampering operations provided for in legislation, or contravening the institutional communications guidelines). With respect to the truthfulness of the statements made by Mr Bastidas Ordóñez, the complainants maintain that, during the disciplinary proceedings, the defence asked for reports to be provided demonstrating that the various statements made by Mr Bastidas Ordóñez on the institution’s inadequate equipment and staffing levels were unfounded, but that this request was rejected. With regard to the possible damage caused by the posts published by the trade union official, the complainants state that an administrative ruling included in the administrative inquiry asking the Directorate of Communications to indicate the damage caused had gone unheeded and that there is no information in the administrative file on the damage caused. The complainants also maintain that the communications in question cannot be considered to be contravening the institution’s communications guidelines because they apply to public servants while carrying out their employment duties, whereas Mr Bastidas Ordóñez published his posts while carrying out his responsibilities as a trade union official. The complainants assert, finally, that the disciplinary proceedings brought against Mr Bastidas Ordóñez are set against the wider backdrop of systematic violations of freedom of association, especially in the public sector.
4. 440. In a second communication of 3 December 2019, the complainants state that two new administrative inquiries have been opened in retaliation for the legitimate trade union activities of Mr Bastidas Ordóñez. The complainants refer, first, to administrative inquiry No. SENAE-CVA-006-2019, based on the statements that Mr Bastidas Ordóñez gave to the broadcasting and media production company, Pichincha Universal, during the period of public protests that began in Ecuador in October 2019 in the wake of the economic measures adopted by the Government. Memorandum No. SENAE DNV 2019 2207 M dated 14 October 2019 states that Mr Bastidas Ordóñez “allegedly issued statements that were devoid of technical basis regarding the quality of the institution’s public servants and measures announced by the National Government”, acts that could constitute misconduct under section 289(11) and (22) and section 290(11) of the COESCOP. The complainants refer, second, to administrative inquiry No. SENAE CVA 007 2019, based on a letter dated 24 September 2019 sent by CONASEP to the President of the Republic in which numerous acts of violence against the institution’s public servants are detailed and which includes a request for a hearing to discuss the facts. The complainants state that, once again, the employer considered this letter to be contrary to the above-mentioned provisions of the COESCOP because the statements were without technical basis. The complainants emphasize that, while section 289 of the aforementioned COESCOP provides for gross misconduct, section 290(11) defines as very serious misconduct the issuance of reports or technical criteria that are unfounded, biased or malicious or contain technically proven fundamental errors.
5. 441. The complainants state that the two additional administrative inquiries against Mr Bastidas Ordóñez constitute new violations of the free exercise of trade union duties and that, as in the initial allegations of July 2019, the administrative inquiries do not establish any causal link between the regulations allegedly violated and the conduct described, which falls within the legitimate and regular exercise of freedom of association. The complainants add that, as in the initial administrative inquiries that led to the opening of the complaint file, the fundamental rules of domestic and international law regarding freedom of information and expression and freedom of association are not being taken into consideration in the ongoing disciplinary proceedings. The complainants maintain that taking these rules into account is of special importance now, given that the accumulation of administrative inquiries and sanctions against Mr Bastidas Ordóñez will directly result in his dismissal as a public official. The complainants point out, lastly, that the disciplinary board that will decide on Mr Bastidas Ordóñez’ case is an internal body of the public institution that is wholly devoid of independence, given that the person who requested the initiation of disciplinary proceedings is a member of the body.

B. The Government’s reply

1. 442. In a communication dated 23 September 2019, the Government provided its observations on the complainants’ initial allegations. The Government states that Mr Iván Kennedy Bastidas Ordóñez, a level 2 customs inspector, has indeed been subject to an administrative inquiry, initiated on 24 January 2019 and related to several posts made by the person concerned on social media that violated the institution’s code of ethics and several internal provisions, as well as section 289(22) of the COESCOP. The Government indicates, specifically, that: (i) it was informed of various posts, dated 16, 20 and 21 January 2019, published on the ASPAE web page in which, as President of that organization, Mr Bastidas Ordóñez made unfounded comments against the National Customs Service of Ecuador; (ii) those posts call into question the running of the institution and the guidelines issued by its senior management, and attempt to disrupt the institutional order by criticizing the handling and conduct of checks usually performed by customs inspection services but undertaken by the national police, stating in one of the posts that “they [the police] can’t even handle public safety and now they want to take over transit and customs, so where are we heading with the national police?”; (iii) one of these statements was also linked to the personal web page of Mr Bastidas Ordóñez; (iv) it was verified during the disciplinary proceedings that Mr Bastidas Ordóñez was indeed the author of the posts and the administrator of the web pages in question; (v) in his defence, Mr Bastidas Ordóñez merely stated that it was the obligation of the party initiating the proceedings to establish the facts contained in the complaint, thereby challenging the facts and legal basis for the disciplinary proceedings and claiming his right to legal certainty; and (vi) among the rules violated by the public official are the public institution’s guidelines, which provide that an official spokesperson of the institution should not give a personal opinion, but transmit the institution’s position through messages previously decided by the Directorate of Communications, and that official spokespersons are members of general management and that assistant managers, while being district spokespersons, can only act with the prior authorization of the Directorate of Communications.
2. 443. The Government states that, having verified that the public official was guilty of gross misconduct provided for in section 289(22) of the COESCOP, a substantial financial penalty equivalent to 8 per cent of his monthly salary was imposed. The Government also indicates that the administrative appeal lodged by Mr Bastidas Ordóñez against his disciplinary action was declared inadmissible because it had not been filed within the deadline. Mr Bastidas Ordóñez lodged the appeal on 23 April 2019, even though he was notified of the disciplinary action on 17 April 2019, after the deadline of three working days to file his action had already passed, according to section 305 of the COESCOP.
3. 444. With regard to the complainants’ allegation that the communications subject to the investigation were made by Mr Bastidas Ordóñez in his capacity as trade union official and in the strict exercise of freedom of association, the Government states that: (i) although the Government of Ecuador recognizes the right of workers to form trade unions, the formation of not-for-profit social organizations under the relevant legal framework does not in itself result in the legal recognition of such organizations as trade unions; (ii) trade unions, having a distinct legal status, are regulated by the Labour Code, the Labour Organization Regulations and other regulations issued for this purpose; (iii) ASPAE was not formed, registered or legalized as a trade union but as a not-for-profit social organization according to article 1 of its statutes; (iv) ASPAE is therefore regulated by the rules for the granting of legal personality to social organizations; and (v) given the above and under the current regulations, ASPAE is not a trade union and neither does its President have the status of trade union official; it can therefore be deduced that the alleged violations under Conventions Nos 87 and 98 do not apply.
4. 445. In a communication dated 11 March 2020, the Government reiterates that: (i) ASPAE is registered as a not-for-profit social organization, which does not imply per se that it is legally recognized as a trade union or that its President has the status of a trade union official; (ii) Mr Bastidas Ordóñez incurred a fine equivalent to 8 per cent of his salary for having posted statements questioning the guidelines and management of the Director-General of the public institution; (iii) this penalty was imposed observing the due process established in the Ecuadorian legislation in force and does not entail harassment and/or persecution of Mr Bastidas Ordóñez; and (iv) the administrative inquiry was therefore conducted without violating provisions established by the ILO regarding freedom of association rights.
5. 446. In a communication dated 2 February 2021, the Government reiterates that on 24 January 2019 an administrative inquiry was opened against Mr Bastidas Ordóñez for issuing information against the public institution and its service, and this gave rise to the imposition of a fine, which the official contested unsuccessfully. Moreover, with regard to the second administrative inquiry referred to by the complainants (No. SENAE-CVA-006-2019), the Government states that: (i) Mr Bastidas Ordóñez made statements on the Pichincha Universal channel against the public institution and called for protest action during the national stoppage in October 2019, action which violated the institution’s code of ethics and the COESCOP; (ii) the public institution’s disciplinary board established that the public servant had committed gross misconduct as defined by section 289(22) of the COESCOP and fined him the equivalent of 4 per cent of his monthly salary; (iii) on 14 January 2020, Mr Bastidas Ordóñez lodged an administrative appeal against the disciplinary decision; and (iv) on 23 January 2020, the public institution dismissed the appeal. With regard to the third administrative inquiry (No. SENAE-CVA-007-2019), the Government indicates that: (i) Mr Bastidas Ordóñez signed and sent a communication to the authorities making baseless statements regarding the public institution and the service that it provides, which breached the public institution’s communications guidelines and violated its code of ethics and the COESCOP; (ii) the public institution’s disciplinary board established that the public servant had committed gross misconduct as defined by section 289(22) of the COESCOP and fined him the equivalent of 8 per cent of his monthly salary; (iii) on 6 January 2020, Mr Bastidas Ordóñez lodged an administrative appeal against the disciplinary decision; and (iv) on 14 January 2020, this appeal was dismissed by the public institution.
6. 447. The Government further states that the three administrative inquiries brought against Mr Bastidas Ordóñez have been dropped as a result of definitive judicial rulings issued in the context of claims for legal protection Nos 17294-2019-01768 and 17230-2019-21533 filed by the public servant. In this regard, the Government indicates that: (i) in the context of legal protection claim No. 17294-2019-01768 relating to administrative inquiry No. 006-2019, after the protection claim filed by Mr Bastidas Ordóñez was rejected at first instance, the appeal ruling overturned the first-instance ruling and ordered the definitive closure of the aforementioned administrative inquiry; (ii) in the context of protection claim No. 17230-2019-21533 relating to administrative inquiries Nos 001-2019 and 007-2019, both the first- and second-instance rulings accepted the protection claim and ordered the closure of the aforementioned administrative inquiries.
7. 448. The Government states that, without prejudice to the foregoing, the administrative inquiries relating to Mr Bastidas Ordóñez: (i) were opened in relation to his status of public servant and were conducted legally on the basis of clear evidence of the acts committed; (ii) the procedure provided for in the COESCOP was fully complied with and the public servant’s right of legitimate defence was strictly observed; (iii) at no time did these procedures result in the violation of trade union rights or of freedom of expression and Mr Bastidas Ordóñez has continued as a trade union official up to the present time; and (iv) no complaint has been submitted to the Ministry of Labour regarding the situation of Mr Bastidas Ordóñez. Furthermore, regarding the complainants’ allegation that Mr Bastidas Ordóñez is at risk of imminent dismissal, the Government asserts that this allegation is untrue, since the public servant in question is still in active service and the reasons for dismissal of any customs official from the customs inspection corps are explicitly established in section 240 of the COESCOP. On the basis of the foregoing and in light of the courts’ quashing of the disciplinary decisions taken against Mr Bastidas Ordóñez, the Government requests the Committee not to pursue its examination of this case.

C. The Committee’s conclusions

1. 449. The Committee notes that the present case refers to the imposition of disciplinary sanctions (fines) against Mr Bastidas Ordóñez, a customs service official and President of ASPAE, as well as General Secretary of CONASEP and General Secretary of the PSI in Ecuador, following communications and statements made on a social media platform and through a broadcasting and media production company, in which he criticized the management of the customs service of Ecuador and measures taken by the Government.
2. 450. The Committee notes that the complainants assert that: (i) the statements by Mr Bastidas Ordóñez which gave rise to the above-mentioned disciplinary sanctions formed part of the legitimate and regular exercise of freedom of expression, which belongs to the function of trade union representation; (ii) these elements were not taken into consideration in the disciplinary decisions which are the subject of the present complaint; and (iii) owing to the accumulation of administrative inquiries against him, Mr Bastidas Ordóñez is now facing possible dismissal.
3. 451. The Committee notes that the Government, after stating that the three disciplinary sanctions imposed on Mr Bastidas Ordóñez in 2019 and 2020 were administered legally, on the basis of clear evidence of the acts committed and without affecting the public servant’s freedom of association, indicates in its latest communication of 2 February 2021 that: (i) the three disciplinary sanctions have been overturned and the proceedings closed by two definitive judicial rulings further to protection claims filed by Mr Bastidas Ordóñez; and (ii) the aforementioned public servant is still in active service without any risk of being dismissed.
4. 452. The Committee notes these separate elements and recalls that the resolution of 1970 concerning trade union rights and their relation to civil liberties places special emphasis on freedom of opinion and expression, which are essential for the normal exercise of trade union rights [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, para. 257]. While observing that the Government has not provided any information on the reasons for the judicial quashing of the disciplinary sanctions and has not appended the text of those rulings, the Committee, noting that the disciplinary sanctions which are the subject of the present case have been dropped, will not pursue its examination of the present case.
5. 453. Noting, lastly, that the Government stated in its communications of September 2019 and March 2020 that ASPAE was not registered as a trade union but as a not-for-profit social organization and that its President does not therefore have the status of trade union official, and that it therefore deduced that the alleged violations of the principles of freedom of association do not apply, the Committee recalls that in a previous case the Committee had called the Government’s attention to the fact that the principles of freedom of association were fully applicable to public servants, “whatever the name given to organizations that may be set up by public servants and workers under the national law in force” [see Case No. 2926, 370th Report of the Committee on Freedom of Association, October 2013, paragraph 386]. Noting the repeated counter-claims by the Government in this regard (see also in this connection, Case No. 3347, 393rd Report of the Committee on Freedom of Association, March 2021, paragraphs 429 and 430), the Committee trusts that the Government will take the necessary steps, including legislative measures if necessary, to ensure that, in accordance with the principles of freedom of association, public servants’ organizations enjoy the different guarantees and prerogatives necessary for the exercise of their functions as representatives of the social and economic interests of their members.