Argentina: Labour Court considers whether an employee, who informally represented other employees before the employer is protected against dismissal as a union delegate?

The Labour Courts of the City of Buenos Aires, in the case – ““San Petri Burone, Julio Cesar c. Kromberg & Schubert Gmbh & Co Kabel Automobiltechnik s/ juicio sumarisimo”” – have recently ruled that the dismissal of an employee that informally represented other employees before the employer, even though he was not formally appointed as union delegate, was discriminative and therefore null, ordering the employer to reinstate the employee and pay him moral damages compensation.

Union Law 23,551 provides that appointed union delegates cannot be dismissed while they hold office and for one year thereafter. In case of dismissal, the union delegate may claim the reinstatement, or consider himself/herself dismissed in constructive basis and claim payment of severance compensation plus pending salaries, until the expiration of his period, plus additional severance.

Labour Law 20,744 as well as Anti Discrimination Law No. 23,592 and international treaties entered by Argentina prohibit discrimination. If an employee is discriminated because of race, religion, age, gender, disability or political or union activities, the employer’s action can be declared null, and the employer can be ordered to both reinstate the dismissed employee and compensate the employee for any damages caused.

In this particular case, the Labour Court considered that the employer had the burden to prove that the dismissal was not related to the employee´s claims against the company and his recent affiliation to the union. In this last respect, the Court concluded that while the employer alleged that the employee was dismissed due to disciplinary breaches, the employer´s witnesses testify that the dismissal was due to “reorganisation”. This contradiction and the fact that the employee was fired right after he affiliated to the union, led the Labour Court to conclude that even though the employee was not formally appointed a union delegate, the employee was dismissed due to this affiliation and his claims against the employer.

Therefore, the Labour Court ruled that even though the employee was not formally appointed union delegate and therefore not protected by Union Law 23,551, the dismissal was discriminative and breached Anti Discrimination Law No. 23,592, in accordance with the Supreme Court precedent “Álvarez, Maximiliano y otros c/ Cencosud S.A. s/ acción de amparo”.

In conclusion, the Labour Court ruled that the dismissal of the employee was null and ordered the employer to reinstate the employee and pay him moral damages compensation, in accordance with Anti Discrimination Law No. 23,592.