Informe definitivo - Informe núm. 295, Noviembre 1994

1. 25. The Committee examined this case at its March 1994 meeting (see 292nd Report, paras. 742-760, approved by the Governing Body at its 259th Session (March 1994)), when it formulated interim conclusions. The Government sent new observations in communications of 10 March and 11 May 1994.
2. 26. Ecuador has ratified the Freedom of Association and the Protection of the Right to Organize Convention, 1948 (No. 87) and the Right to Organize and Collective Bargaining Convention, 1949 (No. 98).

A. Previous examination of the case 27. In the Committee's previous examination of the case certain allegations remained pending for which the Government had not communicated observations. Specifically, these concerned the dismissal as a result of protests and strikes of the General Secretaries of the Federation of Telecommunications Workers (FEDETEL) and the Trade Union of the State Telecommunications Enterprise (SINDO-IETEL) (Messrs. César Jara Pullas and Fernando García); the dismissal of eight trade union leaders of the State Telecommunications Enterprise (EMETEL), including the General Secretary of the National Federation of Telecommunications Workers of Ecuador (FENETEL) (Mr. Leonardo Torres Sarmiento); and the detention for 24 hours of the trade union leader, Mr. Abdón Logroño Losada.

1. 28. In these circumstances, the Committee formulated the following recommendations (see 292nd Report, para. 760):
2. The Committee requests the Government to communicate its observations on the alleged dismissals of the General Secretaries of FEDETEL and SINDO-IETEL, Messrs. César Jara Pullas and Fernando García, as a result of protests and strikes.
3. The Committee regrets that the Government has not explained the reasons for the 24-hour detention of Mr. Logroño and requests it to communicate detailed information on this allegation.
4. Observing that the new allegations presented by the CLAT regarding the dismissal of eight trade union leaders from the EMETEL enterprise, including the General Secretary of the National Federation of Telecommunications Workers of Ecuador (FENETEL), Mr. Leonardo Torres Sarmiento, were transmitted recently, the Committee requests the Government to furnish its observations on these allegations as quickly as possible.
5. B. The Government's reply
6. 29. In its communication of 10 March 1994, the Government states that, as regards the alleged dismissal of eight trade union leaders from the EMETEL enterprise (including the General Secretary (Mr. Leonardo Torres Sarmiento) of the National Federation of Telecommunications Workers of Ecuador (FENETEL)), these dismissals were the result of a de facto decision taken by the enterprise, which was not sanctioned by law, and that under the labour legislation, unjust dismissal is penalized by the payment of compensation calculated according to the worker's length of service. Furthermore, an employer who dismisses a worker without justification must pay a special bonus along with the compensation provided under the respective collective agreement. The Government explains that these dismissals took place without the labour authorities being aware of them and that in August 1993, the Ministry of Labour had already denied authorizations of dismissal (vistos buenos) requested by the enterprise, because of a lack of legal grounds to terminate the employment relationship. The Government states that the Ministry of Labour could intervene to arrange for the EMETEL enterprise to comply by paying this compensation, and that the dismissed workers could also bring legal action to request payment, as one of the prejudiced workers had already done. Finally, the Government reports that the legislation does not establish the right of a dismissed worker to return to his post, and that the labour authorities thus cannot intervene by ordering reinstatement.
7. 30. In its communication of 11 May 1994, the Government states that, as regards the alleged dismissal of the General Secretaries of the FEDETEL and the SINDO-IETEL (Messrs. César Jara Pullas and Fernando García), the EMETEL enterprise requested a visto bueno authorization to dismiss Mr. Fernando García, but that he was not dismissed, as the labour authority denied the dismissal request, and he is thus still working at the enterprise. As regards Mr. César Jara Pullas, the Government states that the EMETEL enterprise requested from the labour authorities a visto bueno authorization to terminate the employment relationship, basing the dismissal on the worker's lack of integrity and serious insults made by him against the employer. The Government reports that after an investigation was conducted by the labour authorities to determine whether the authorization should be given, it was ascertained that Mr. Jara Pullas had conducted a written campaign of insults, abuse and threats not only against the enterprise's authorities, but also against other trade union leaders. Furthermore, the Government points out that after studying the case, the enterprise's joint worker-management committee adopted a resolution authorizing the EMETEL to proceed with the dismissal authorization procedure. As it was ascertained that the grounds invoked by the enterprise did indeed exist, the labour authority granted the authorization for the termination of the employment relationship with the trade union leader. The Government denies that protests and strikes were the cause of this termination which took place with the Government's authorization, and further specifies that during the negotiation and signing of the collective agreement at the EMETEL enterprise there were no strikes or protests.
8. 31. Finally, the Government states that as regards the alleged detention for 24 hours of the trade union leader Mr. Abdón Logroño Losada, a complaint was filed by Ms. Greta Hoyos in accordance with the procedures established by national law and that the complaint was handled by the judicial authorities. The Government reports that the judge may, when he considers it necessary, order the temporary detention of the accused for up to 48 hours while beginning the investigation. The Government points out that it was not a party to the complaint.

C. The Committee's conclusions

1. 32. The Committee observes that the allegations which remained pending after its examination of this case in March 1994 referred to dismissals and requests made to the labour authorities for authorizations of dismissals of trade union leaders at the EMETEL enterprise, as well as the detention of a trade union leader.
2. 33. As regards the alleged dismissals of the General Secretaries of the FEDETEL and SINDO-IETEL (Messrs. César Jara Pullas and Fernando García), the Committee notes that the Government states that Mr. Fernando García was not dismissed and is still employed at the enterprise.
3. 34. As regards the case of Mr. Jara Pullas, the Committee notes the Government's observations according to which the enterprise requested the authorization to terminate the employment relationship with this trade union leader, that following an investigation conducted by the labour authorities it was ascertained that a written campaign of insults, abuse and threats had been conducted against the enterprise's authorities and against other trade union leaders, and that the authorization was therefore granted. Furthermore, the Committee notes that the enterprise's joint worker-management committee approved the proceedings aimed at obtaining the visto bueno (authorization for dismissal). The Committee recalls that although "the right to express opinions through the press or otherwise is an essential aspect of trade union rights" (see Digest of decisions and principles of the Freedom of Association Committee, 3rd edition, 1985, para. 172), "in expressing their opinions trade union organizations (and their leaders) should respect the limits of propriety and refrain from the use of insulting language" (see 254th Report of the Committee, Case No. 1411, para. 198, approved by the Governing Body at its 239th Session (February-March 1988)).
4. 35. As regards the alleged dismissal of eight trade union leaders from the EMETEL enterprise, including the General Secretary (Mr. Leonardo Torres Sarmiento) of the National Federation of Telecommunications Workers of Ecuador (FENETEL), the Committee notes that the Government states that:
5. (1) such dismissals took place based on a de facto decision taken by the enterprise, which was not sanctioned by law, and without the labour authorities being aware of them;
6. (2) under the labour legislation, unjust dismissal is penalized by the payment of compensation calculated according to the worker's length of service;
7. (3) an employer who dismisses a worker without justification must pay a special bonus along with the compensation provided under the respective collective agreement;
8. (4) the dismissed workers may bring legal action to request payment (as one of the prejudiced workers has done). Furthermore, the Committee notes that the Government states that the Ministry of Labour could intervene to arrange for the EMETEL enterprise to comply by paying this compensation, but that it could not request the reinstatement of these trade union leaders, as the national legislation does not establish a right to reinstatement.
9. 36. Consequently, since the Government recognizes that the trade union leaders were dismissed illegally, the Committee should like to point out the principle according to which "it would not appear that sufficient protection against acts of anti-union discrimination, as set out in Convention No. 98, is accorded by legislation which enables employers in practice - on condition that they pay the compensation prescribed by law for cases of unjustified dismissal - to dismiss any worker, if the true reason is his trade union membership or activities" (see 292nd Report, Case No. 1625 (Colombia), para. 70 and Digest, op. cit., para. 547). In these circumstances, the Committee requests the Government to facilitate an agreement between the State Telecommunications Enterprise and the trade unions so that the dismissed workers can be reinstated in their posts.
10. 37. As regards the detention for 24 hours of the trade union leader Mr. Abdón Logroño Losada, the Committee notes that the Government reports that a complaint was filed by another trade union leader, Ms. Greta Hoyos, in accordance with the procedures established by national law and that the complaint was handled by the judicial authorities. Furthermore, the Committee observes that the complainants pointed out in their complaint that Ms. Greta Hoyos, after filing the complaint, did not confirm the accusations (see 292nd Report, para. 747). In these circumstances, as the detention resulted from a private dispute and was not the result of action taken by the enterprise or the authorities, the Committee will not proceed with the examination of this allegation.