“Exploitator and executioner of his staff. With a pittance of silver he wants to buy the union. Once again we see the kind of turncoat and bad person he is. He is used to his dirty money fixing everything. Owner and staff fucker”.
This was the way they found the union delegates of the escort service company Asisper (from Salto) through a publication on Facebook to convey their discomfort with the owner. That posting was made by the president and the treasurer of the union, on January 28 of this year. The two were fired on February 1 on grounds of egregious misconduct. The two workers appeared before the Labor Court arguing that the dismissals showed an anti-union treatment and appealed to the union immunity law (17,940) to defend his post. The law establishes a system of protection for trade union activity and institutes a special protection process against discriminatory acts, facts or omissions tending to cause an injury to freedom of association.
A final judgment of first instance, issued on March 9 of this year, dismissed the lawsuit in all its terms and granted the reason to the company that was represented by the lawyers Matías Pérez del Castillo, Florencia Di Segni and Juan Pedro Núñez, of the Pérez del Castillo & Associates studio. Despite this ruling, the union delegates filed an appeal. On April 1, the 2nd Shift Labor Court of Appeals confirmed the appealed sentence.
The court, in the analysis of the evidence presented, understood that the expressions published on Facebook did not refer to issues related to the union or were said in “the heat of a discussion in negotiation areas and these terms were the product of the heat of the parties ”. On the contrary, “it can be seen that the terms of the publications are of an insulting nature” and there is no reference to the anti-union conduct of the company or the owner.
Referring to considerations of the International Labor Organization (ILO), the ruling indicated that the full exercise of trade union rights requires the existence of a free flow of information, opinions and ideas, and to that end, both workers and employees as well as their organizations should enjoy freedom of opinion and expression in their meetings . However, he clarified, in the expression of his opinions “organizations should not exceed the permissible limits of controversy and should refrain from excessive language”.
He also warned that the publication of the delegates is not due to the heat of a discussion, but that it was a thoughtful decision that involved placing the posting on a social network and that “it remained in the sight and patience of the general public.”
The sentence considered that the members of a union should be able to express before the employer their demands tending to improve the situation of the workers within the company. But this does not mean, he added, that criticism can be assimilated with insult. In this context, in the opinion of the court “the publication (of the leaders in the social network) undermines the bond of trust and mutual respect that should govern labor relations”. Lastly, he concluded that the dismissal of the two workers “cannot be called unjustified or anti-union, operating a reasonable cause that explains the decision made” by the company to dismiss them.
Regarding the case, Matías Pérez del Castillo told The Observer that the Justice understood that the delegates made an abusive use of a right. “The error is a leading case in two ways. First, because it makes explicit that freedom of expression, like any right, has limits that were violated in this case. Second, because it recalls that freedom of association does not protect the abusive exercise of rights nor does it imply that those who exercise it go unpunished. In short, it is clear from the ruling that neither freedom of expression nor in union jurisdictions justify questions such as those that were published on the social network and that gained notoriety”, he added.
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