19 septiembre 2018

A Recent Supreme Court Ruling Reaffirms the Principle of the Burden of the Proof in Cases of Anti-Union Discrimination

The Supreme Court has rendered its decision in the case of “Varela, José Gilberto v Disco S.A. on union protection”, reopening the discussion about the effects of an eventual wrongful termination, the burden of proof, and the application of the laws currently in force, both the Unions Act No. 23551[Ley de Asociaciones Sindicales] and Act No. 23592 about the observance of the principle of equality.

The Highest Court rejected the decision by the Supreme Court of the Province of Catamarca. The claim included the nullity of the employment termination and the subsequent reinstatement of an employee who conducted union activities, based on the Law No. 23551 protecting union representatives only. The Supreme Court found that the Catamarca Court’s decision was arbitrary, taking into consideration that it failed to consider elements of evidence that proved that employee’s termination was for other reasons than the exercise of his union rights while supporting his coworkers in claims he had initiated when the Company was aware or not of the activities he conducted (Supreme Court of Justice, September 4, 2018, Varela, José Gilberto v Disco S.A. on union protection. LA LEY September 17, 2018, 9. AR/JUR/47017/2018).

As a matter of fact, this ruling does not state who is right but rather questions the assessment of the existing elements of proof, and therefore refers the case for a new decision. When litigation revolves around whether the employment termination is due to an act of discrimination, the interested party must provide evidence for such reason for termination, and in this case the Defendant failed to prove that the reason for termination was not discrimination.

Under the Argentine Constitution and labor laws, workers may be terminated without cause, and employers may put an end to their employment relationship without giving any justification. This is enough to avoid the effects of Acts No. 23551 and 23592 establishing that in case of discriminatory termination employers must provide evidence that the reason for termination is not related to any act of discrimination: it would be enough to prove that termination was for any other reason, regardless of their nature.

Act No. 23592 is a general rule that provides more protection in the same situation than special laws –in this particular case, Act No. 23551- without any restriction in the text that may be incompatible with the regulations establishing financial reparation and without excluding a group of workers for whom lawmakers intended to grant remedy as a rule; therefore, when faced with the dilemma of applying special laws to the case and the Plaintiff’s claim based on Act No. 23592, the Court may opt to impose the terms of Act No. 23592 (vote by Mr. Rosatti).

Along this line, it turned out that Act No. 23592 was not applicable in this case because there were not enough elements in support of the requirements therein stated. The Plaintiff’s activism was not enough to claim protection under Act No. 23551. The Court concluded that the employee could not prove his union activity before his employment termination. That is why the evidence did not prove that decision to terminate him was the exercise of his freedom of association.

As to the application of Act No. 23592 in labor and employment matters, in re “Pellejero, María M. con union protection”, February 8, 2008, repeated criteria by S.C.P. 1508, L. XLII Y P 1210, XLII, “Parra Vera, Máxima v San Timoteo on amparo [action for enforcement of fundamental rights]”, opinion dated February 13, 2008 and S.C. A. 590, L. XLIII, S.C. A 390, LXLIII; “Arecco, Maximiliano v Paxiar Argentina SA on specially expedited summary proceeding”, opinion dated March 17, 2008 and in re “Alvarez” (Judgments 333:2306) it is worth mentioning that discrimination cannot be a mere dogmatic affirmation but rather the party claiming the act of discrimination must submit the relevant pieces of evidence.

In other words, in those cases where Act No. 23592 is applicable and litigation revolves around the existence of an act of discrimination, it would be enough to prove the facts that lead to infer that there is discrimination, in which case the Defendant will have the burden of proof, meaning that the Defendant will have to provide evidence of an objective and reasonable cause different from any act of discrimination, and it is the Court’s mission to assess the evidence in accordance with rules of reasoned opinion (Judgments 334:1387, in re Pellicori). Finally, the Supreme Court without taking a final stance but with all the above-mentioned considerations ordered that a new decision be rendered.

By Julian A. de Diego
Director of the postgraduate course on Human Resources at the School of Business at UCA.

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