Volunteering: Recent Argentine Supreme Court Ruling

In the “Correcher Gil Dolores vs. REMAR ARGENTINA Asoc. Civil in re dismissal” case , the plaintiff alleged to have attended the NGO along with her husband, with the purpose of recovering from an addiction, but then started rendering services for same. She stated to have had maintenance and living expenses covered, to have been granted a car and cash. The NGO acknowledged the fact that the plaintiff did perform several tasks but under the scheme of religious service and/or with the volunteering and sole purpose of assisting a non-profit organization. Both parties alleged that the plaintiff was part of the NGO’s Reviewing Accounts Committee and never to have had actively participated in  it.

The First Instance court rejected the suit stating that there had been no relationship of labor nature between the parties.

Room No. V of the CNAT, under Enrigue Arias Gibert and Oscar Zas’s criteria, revoked the first instance ruling, accepting the claim and sentencing “Remar Argentina Asociación Civil”, based on Section 23 of the Labor Contract Law  which states a presumption in favor of considering a labor relationship occurred, along with Section 115 of the Labor Contract Law which states that  rendering of tasks is never to be thought of as done for free. The intervening CNAT  considered that a monthly remuneration of ARS 3,500 (which included car and living expenses), along with a 12-year-term of service (since her entry into the facilities with the purpose of overcoming addiction) The CNAT also considered that the NGO had failed to account for the volunteer nature of the services rendered and highlighted the fact that the NGO was not a religious entity registered as such, but a non-profit civil association, which contradicted the argument that stated that the relationship held with the plaintiff was of religious essence.

The case finally reached the  CSJN, which considered that even if the defendant’s grievances would only refer to common law and factual situations, the fact that the evidence was not entirely analyzed was enough to accept the extraordinary remedy of appeals.  The SCJN  stated that the CNAT  avoided the treatment of witness statements, considered relevant to the clarification of the disputed facts and to the proper framing of the claim. Among these statements, allegations such as follows were taken into consideration: “the plaintiff entered Remar along with her husband to recover from addiction and they decided to become a part of the social volunteering to cooperate in tasks needed”; “that every activity performed by the plaintiff was not made in exchange of any retribution”; “that everything they did was ad-honorem”; and that “no one received a salary because it is merely volunteering”. From the statements collected, the CSJN  also considered that “the vehicle…belonged to Remar at the disposal of any member living in such institution”; “there was no fixed schedule”; and “there was never a formal assignation of living facilities (...) but  cohabitation along with the family and other families, as made by every signing-up member who checks in for rehabilitation.” Under such statements, the CSJN, under a vote issued by the justices Ricardo L. Lorenzetti, Juan Carlos Maqueda y Carlos F. Rosenkrantz (majority), and Elena I. Highton de Nolasco and Horacio Rosatti (in dissent), considered that the appealed ruling was merely dogmatic and not a judicial valid act. Thus, on account of the arbitrariness of ruling’s criteria, moved on to accepting the defendant’s complaint and extraordinary remedy of appeals, leaving the questioned ruling with no effect, splitting the costs in equal shares to both parties and ordering a new ruling on the case, hand-in-hand with this criteria.

Concurrently with the ruling issued by the CSJN, the Pro Bono Work Committee of the Buenos Aires Bar Association is drafting a bill to regulate labor relations of any nature at non-profit organizations.