This is an interesting statement in the context of the legislative change that is approaching as of August 1, reinforcing the protection of workers.
Given the upcoming entry into force of the so-called Karin Law, as of August 1 of this year, the rules and regulations with which companies must confront, investigate, resolve and sanction acts constituting workplace harassment, sexual harassment and also violence in the workplace.
In this context, it is essential to analyze the way in which recent jurisprudence has dealt with these matters, the role and responsibility that has been attributed to the employer, prior to the entry into force of the new law, in the face of complaints of facts that allegedly constitute sexual harassment.
On this occasion we comment on a ruling by the Labor Court of Santiago, on the case of a former worker, who reported her supervisor to her management when she had a valid employment relationship.
The accused contacted her through WhatsApp and Instagram and then sent her an “intimate” photograph, indicating that he was alone at home at that time, in case she wanted to attend.
Given these events, the worker informed her management of this situation, requesting the start of an investigation process. As the days passed, she requested an update and information on the status of this process, to which she was told that she should wait, never having news of the process and subsequently being notified of her dismissal.
For its part, the company based its position on the absence of a record or formal communication of the complaint of alleged acts of sexual harassment in accordance with the provisions of its internal regulations, which is why it was never able to carry out an investigative action given that he had no history of the facts that he only became aware of with the lawsuit.
Resolving the controversy, the court established that “the defendant” acknowledges in the answer to the complaint that the worker made a verbal complaint about this fact to her supervisor, including the WhatsApp screenshots, in which the plaintiff appears speaking with another person, who apologizes for the “dislocation” and tells her that “it will not happen again.” This situation allows us to presume that there was a previous event that was socially questioned or that made the plaintiff uncomfortable, although the existence of it is not noted. a photograph of this worker’s private parts, but it is presumed that it existed, since it was seen by the plaintiff’s partner, who declared it credible to the court, in addition to the statement of the victim. “Despite being affected, she declared clearly, confidently and without hesitation what happened.”
Due to the above, it was established that “it is proven that the plaintiff was harassed or at least suffered an episode of sexual harassment at work, by a co-worker, who took advantage of obtaining her cell phone number for work duties, and sent her a photograph of her private parts”, reproaching the business attitude by “establishing that the businessman’s behavioral passivity allowed the state of violation suffered by the plaintiff to be maintained throughout the duration of the contract, and that the offender was unpunished”
As a result of the above, the company was condemned for violating the worker’s rights, specifically, her mental integrity and honor.
As can be seen, this is an interesting statement in the context of the legislative change, which is coming as of August 1, reinforcing the protection of workers, as well as the importance of the role that the employer has in training and dissemination of these topics in their leadership positions and in the carrying out of investigation processes, which the new regulatory framework establishes in response to complaints of workplace, sexual harassment and violence in the workplace.
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
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