Taking part in a strike and dismissal

On June 26, 2006, Room VI of the Argentine Court of Appeals in Labor Matters, through a judgment passed in re: "Payaslian, Christian Daniel vs. Arte Gráfico Editorial Argentino S.A. et al for dismissal" ruled that “even considering that plaintiff has taken part in the strike, with no personal and specific demand to perform his usual tasks, in addition to the fact that there is no evidence of the participation of the employee in the events stated in the notice of dismissal, the circumstances are not serious enough to justify the dismissal of the employee”.

1.    Background

Arte Gráfico Editorial Argentino S.A. decided to dismiss Mr. Payaslian alleging that he had taken part in the strike which did not accept mandatory mediation.

The court of first instance sustained the complaint filed by Mr. Payaslian on the basis that his participation in the events had not been duly proven.

2.    The decision

Tribunal VI of the Argentine Court of Appeals in Labor Matters confirmed the first instance judgment and ruled that although the occupation of the facilities during a labor dispute may be subject to a disciplinary sanction, "this single event per se is not grounds for dismissal, mainly taking into account that no previous disciplinary sanctions against the employee were invoked or evidenced which together with the event that motivated the dismissal, would justify the employer’s decision ".

Likewise, Tribunal VI considered that an illegal strike does not necessarily constitute justification for termination of an employment contract. Dismissal with just cause requires that there be a demand to the striking employee to resume his tasks and only in the case of disobedience to such demand may the denial be considered as a circumstance sufficiently serious to justify dismissal. 

Thus, the Court of Appeals decided that even if the plaintiff has taken part in the strike, with no personal and specific demand to perform his usual tasks, without proof from the employer as to the specific participation of the employee in the events alleged, and without producing evidence of previous disciplinary sanctions, the situation was not so serious as to justify the employee’s dismissal.