A decision admits “mobbing” or “moral harassment”as grounds for indirect dismissal

We must first consider the concept of mobbing, namely, what does this actually refer to? A first approach could be to define it as an action in which a person or a group systematically employs strong psychological pressure with the purpose of preventing the victim from communicating, disturbing the way they perform and destroying their reputation, until they achieve their purpose: the victim abandons their job.

In relation to the active subject of this behavior, it is to be noted that it has been considered thatpersecution may be carried out by one or several of the victim’s coworkers, as well as by the company, in which case, the behavior would be considered “bossing” o “vertical mobbing” as acknowledged by legal authors.

In re “Dufey”, the High Court of Justice of the Province of Río Negro heard the case of a female worker who alleged “emotional abuse” or mobbing as grounds for indirect dismissal, on finding for the nullity of the decision of the Court of Appeals that had previously rejected her claim.

Plaintiff went to court after considering her employment terminated, alleging that she had been subjected to “psychological harassment, stress and discrediting”, on considering that she had been forced to fulfill tasks appropriate for a higher category and alien to her usual activity and thereby in disavowal of the salary consideration that she in fact merited.

Faced by “workplace harassment, stress and discrediting suffered”, the worker requested regular leaves of absence on psychological grounds, duly certified by the company psychologist. During this period, the defendant demanded that she return to her job, warning her that she would be accused of abandoning her work. Nevertheless, Plaintiff did not return to her job and to the contrary, considered herself dismissed on account of “grave workplace injustice” (indirect dismissal). As there is no specific legislation on this subject matter, the figure was subsumed in that of “grave injustice” by mobbing, which is characterized by repeatedly hostile behavior and techniques for upsetting a worker who then develops, in consequence, serious and lasting psychological problems.

The Court of Appeals rejected the claim filed for differences in salaries and severance pay arising from the indirect dismissal plus damages as a result of the psychological mistreatment to which the plaintiff considered herself subjected.

The High Court of Justice of the Province of Río Negro heard the appeal for reversal and found for nullity of the decision passed by the Court of Appeals on the grounds that said decision is lacking in the necessary legal foundation required by the rules of procedure in force. It is held that the Court of Appeals incurred in arbitrariness and incongruity in the consideration of the evidence as regards proof of the grave injustice in the harassment invoked, or mobbing, on omitting consideration and resolution on the basis of the essential evidence. As a result thereof, the High Court understood and appraised harassment by the defendant company as grounds for self-dismissal as a result of mobbing and ordered a new decision.

It is important to point out, as previously mentioned, that this is the first decision by one of our Courts to acknowledge the legal definition of mobbing. This is why we believe that it must be taken into account, in view of the fact that a legal vacuum exists in our country in relation to this legal definition in the sphere of Labor Law. Nevertheless, it is necessary to point out that Law No 1225, applicable to the staff employed by the powers of the Autonomous City of Buenos Aires, provides a broad concept of this legal definition, considering that it covers “the actions employed against a worker that go against their dignity, physical, sexual, psychological, or social integrity, by way of threats, abuse of power, harassment, sexual or otherwise, physical, psychological or social abuse, or offense employed against a female or male worker”. It is important to take into account, moreover, that this regulation defines the concept of “psychological or social abuse” as continuous and repeated hostility by a higher ranked person by way of insults, psychological harassment, contempt and criticism, mentioning, without limitation certain behavior that would thus constitute this abuse.

At present, several foreign courts have adopted the legal definition of mobbing, as in with Italy, and it is broadly accepted in comparative law. If we consider this information together with the fact that locally we already have a legislative antecedent and now a court decision acknowledging this situation in our country, it is highly probable that our courts will begin to adopt decisions similar to those discussed for the decision on “Dufey”. This is particularly true when there is a broad legal opinion considering that the different manifestations of psychological harassment must be framed as default of contract by the employer of the duties of good faith, of duly proceeding as a “good employer”, of acting with a spirit of cooperation, solidarity and foresight. There can be no doubt that a concept this broad could lead to be considered as psychological harassment, attitudes that are far from being such, with the subsequent risk that this entails in relation to claims that could arise on these grounds as the main object of lawsuits.

In short, a cautious criterion is called for by judges when considering claims that are connected to mobbing, so that the application of this legal definition is not distorted.