Reinstatement of a dismissed worker

The Argentine Court of Appeals in Labor Matters, Room IX, decided to confirm the lower court’s decision and ordered a company to reinstate a female worker who was dismissed without cause understanding that “job discrimination” existed.

1. Job security

To better understand this case we will briefly consider the concept of job security and its different manifestations. In relation to this issue, labor systems can be considered divided into two camps:

•absolute job security or job security proper;

•relative or improper job security.

Absolute job decurity denies the effectiveness of dismissal and admits, in consequence, a mandatory reinstatement of the employee. This system has been admitted under certain circumstances in our legislation and it covers not only state employees but workers under constitutional protection of union representation.

Relative or improper job security is that in which dismissal grants the dismissed worker the right to indemnity. The Argentine Law of Employment Contract, article 245, adopts this criterion.

2. Background

In this case, the female worker alleged having been dismissed as a result of sending an email to her fellow workers, calling on them to adopt joint peaceful action in solidarity with the workers of an airline company.

In this context, the female worker filed a suit for discrimination, alleging violation of individual guarantees and human rights covered by the Constitution and Law No 23,592(1) and requesting her reinstatement.

3. The decision

Faced by the worker’s claim, the decision of the Court of First Instance considered that dismissal of the plaintiff constituted a restriction imposed by the employer on the full exercise of the constitutional right to make one’s ideas known and ordered reinstatement.

Defendant appealed the decision, considering that ordering reinstatement of the plaintiff violates management’s legitimate authority to dismiss plaintiff without cause, paying the corresponding severance pay.

Room IX considered that in this case the discriminatory nature of the dismissal had been duly proven in testimonial and documentary evidence. The conclusion was that such a dismissal exceeds the framework of relative or improper job security system.

Therefore it was concluded that an effective assumption was verified to put into practice the provisions of Law No 23,592, directed at penalizing the violation of individual guarantees and human rights, on the basis that the dismissal constituted a restriction imposed by the employer on the full constitutional right to make one’s ideas known (Argentine Constitution - article 14)

In consequence, the court held that the situation must be returned to the same or similar condition existing before dismissal and ordered reinstatement of the effectiveness of the contract.

4. Controversial legal aspects

The fact is that job security proper is not established by our legislation as a general principle to rule labor-management relations, being established only for those specific cases such as in the case of union representatives as mentioned above.

It is extremely important to point out that the guarantee against arbitrary dismissal established by the Argentine Constitution has been precisely dealt with in the indemnity system, by means of the indemnity provided for in article 245 of the Law of Employment contract, taking into account, on calculation thereof, both the worker’s remuneration at the time of dismissal, as well as the worker’s seniority at dismissal.

There is no provision whatsoever in the Law of Employment Contract that expressly rules the obligation by the employer of maintaining employees even against his will or in the event of having decided on dismissal, that establishes their reinstatement, beyond the especially established assumptions of protection.

(1) Article 1 of the aforementioned Law establishes that, “…whoever arbitrarily prevents, obstructs, restricts or in any way impairs the full exercise on equal basis of the basic rights and guarantees acknowledged by the Constitution, will be obliged, on request of the injured party, to annul the discriminatory act or to cease in its realization and repair the moral and physical damage caused …”.