The worker considered that a series of constitutional guarantees were violated, specifically his rights to psychological integrity, honor and privacy.
This case is about a worker, engaged in truck driving, who filed a complaint for protection of fundamental rights and, in subsidy, for unjustified dismissal against his former employer, and jointly and severally against a mining company, in view of the dismissal to which he was subjected, claiming a series of indemnities, including moral damages.
In fact, the worker was dismissed for serious breach of the obligations imposed by the contract based on the fact that at the time of performing his work he engaged in distractive behavior, speeding and drowsiness while driving.
This was evidenced by a drowsiness prevention system implemented by the company, which consists of a camera oriented to the driver’s face, accompanied by a system of two lasers pointing directly to the driver’s face.
In this context, the employee considered that a series of constitutional guarantees were violated, specifically his rights to psychological integrity, honor and privacy, all these allegations being dismissed by the court in its judgment (case RIT T 505-2022 of the Labor Court of Antofagasta), mainly because the facts alleged in the letter cannot in themselves be in violation of constitutional guarantees, given that the employer had only complied with the legal obligation to indicate in the letter the grounds for the dismissal.
Likewise, in order to reject the tutelage, the court argued that the grounds of the lawsuit were based on issues that occurred during the employment relationship -especially in relation to the existence of the system implemented in the company- without the employee having filed any claim while it was in force.
In fact, on this last point, the court reasons indicating that “To conclude, it should be said that once again the grounds for protection in this aspect are related to an action that should have been exercised while the employment contract was in force but not once it was terminated, given that although it is effective that the labor video surveillance systems can generate unlawful limitations to fundamental rights, it has been required by the doctrine that in order to be admissible they must meet certain criteria such as that the controls must not be surreptitious, hidden or without the knowledge of the worker, being also necessary their adequate socialization; they must refer exclusively to work-related aspects and not to the intimate life of the employee“.
The court continues, “The employer must justify the concrete necessity of the means used, which must respond to an identified productive or safety requirement, it is no less certain that even if the absence of such criteria was effective for the worker while providing his services, this is not related in any way to an injury that the dismissal would have caused to a fundamental right and should have been the subject of a discussion to be ventilated with the action that should have been exercised at the time pursuant to Article 486 of the Labor Code” (Twelfth Consideration).
Subsequently, after hearing the unjustified dismissal action, the court refers to the facts that were imputed to him in the dismissal letter, i.e., distracted driving, speeding and drowsiness while driving.
Thus, with respect to the distracting behaviors, it indicates that these are facts extemporaneous to the dismissal and regarding the speeding, it expresses the absence of infractions by the plaintiff, concluding that “none of the facts described had the necessary gravity to terminate the employment contract and reflects the lack of justification of the dismissal” (Considering the nineteenth).
Thus, referring to “drowsiness while driving”, the court considered that “It is difficult to understand as a labor misconduct and rather obeys a physiological condition of people, so it is already complex to frame within a serious breach of contract, especially considering that sleep disorders are recurrent diseases in the population“.
Later it adds that “The hypothesis of fact proposed by the plaintiff is reasonable, in the sense that it is logical that the “Dry Eye Syndrome” that he suffers and that was diagnosed as shown by the medical documents of his documentary evidence, could generate a false reading of the alert system that the main defendant has implanted, resulting in false positives of drowsiness (…)” (twentieth recital).
Finally, in the same recital to dismiss this fact as a breach, the court noted the negligence of the employer in its actions, since in view of the explanations that the worker had given the company “did not take any action according to law to determine the possible interference of the alert system and the visual pathology, since it only had a meeting with the president of the joint committee, which is a collegiate body that does not function in a unipersonal manner, to approve a dismissal on the basis of a guilty cause already decided as the same witness pointed out”.
Then, the court emphasizes that “By saying that it was explained to the president of the Committee the possible responsibility for an accident due to the drowsiness alerts, when what he should have done was to refer the background information to the body administering the Occupational Accidents and Occupational Diseases Law No. 16. 744, so that in that capacity it could determine the possible existence of an occupational pathology or an occupational risk derived from a common disease and take the pertinent measures to rule out that the worker was indeed being detected by mistake as drowsy or, alternatively, adopt measures to obtain a safe job with that medical condition, which was not the case“.
In this way, the dismissal was declared unjustified, ordering the payment of indemnities and legal surcharges in favor of the employee.
For more information on these topics, please contact our #azLabor group:
Jorge Arredondo | Partner | jarredondo@az.cl
Jocelyn Aros | Senior Associate | jaros@az.cl
Felipe Neira | Associate | fneira@az.cl
Palmira Valdivia | Associate | pvaldivia@az.cl
