Stability guarantee – Union protection

On February 23, 2016, the National Supreme Court of Justice emphasized that the effective enjoyment of union protection is subject to the compliance of the requirement to notify the employer about the formalization of the employee’s candidature to a union position.

The reinstatement claim was initiated by an employee who had been nominated for a union position and, during the same day in which the employer received the communication of her application, the employer sent the communication of dismissal.

The Superior Court of Justice of the province of Río Negro admitted the claim of reinstatement giving a broad interpretation to section 48 of law 23,551 of Unions, according to which the stability guarantee has its starting point on the date on which the competent body of the union receives the list of the candidates with the correspondent formalities.

The National Supreme Court of Justice, without giving opinion about the solution of the conflict, disqualified the ruling issued by the Superior Court of Justice of the province of Río Negro considering that there was not a reasoned derivation of current law applied to the proven circumstances of the case.

To reach to such conclusion, they considered that the provision which governs the issue is section 50 of law 23,551 of Unions and highlighted that the effective enjoyment of union protection is subject to the compliance of the requirement to notify the employer about the formalization of the employee’s candidature to a union position.