The Court held that the employer acted with due diligence after having received the internal complaint from the former employee.
Since in Chile we still do not have judicial pronouncements on the practical application of the so-called “Karin Law”, it is useful to know the scope that other jurisdictions have given to this issue.
The ruling that we are commenting on this occasion is related to the pronouncement of the Social Chamber of the Superior Court of Justice of Madrid (Appeal 517/2024) regarding a claim for dismissal by termination of contract (self-dismissal) filed by a former employee, who claimed to be affected by a situation of harassment and bullying for reasons of sexual orientation within his company.
In this case, the plaintiff worker requested the Superior Court of Justice to accept his appeal, arguing that “The termination of the contract was due to [a] situation of harassment, lack of respect and constant homophobic comments and attitudes witnessed by [*], co-worker and partner of the plaintiff”, having even reported this situation, previously and internally, to his own employer.
Thus, having been initially rejected the claim by the labor court of instance, the plaintiff asked the Superior Court to review the decision and accept his appeal, noting the judicial body that the argumentation of the former employee was based on the fact that “the witness evidence ratifies the repeated insults and the contemptuous way in which his hierarchical superiors referred to the plaintiff, because of his sexual condition, during working hours, which is unjustifiable, there being a psychosocial risk in the plaintiff’s department.
It adds that “This constitutes a breach by the company that affects the moral integrity, dignity and peace of mind of the plaintiff, who cannot be harmed and discriminated against because of his sexual condition even for a single moment, even if there is no harassment (…) the plaintiff has the right to keep his sexual life private and not to be discriminated against because of it”.
However, the High Court of Justice ended up rejecting the appeal of the former employee, holding -in short- that: “It cannot be ignored that, in order to consider the cause of termination of contract by the employee (…) it must be understood that there has been a serious breach of the employer’s obligations, which entails an attack on the dignity, equality, integrity and peace of the appellant, for which it is essential to take into account the unchanged factual account of the judgment of the first instance”.
In this way, it indicated -in the case in question-, that: “as soon as the appellant reported the alleged breaches that he considered were occurring in the department to which he was assigned, the company began an investigation into the matter, giving immediate attention to the appellant in order to clarify the reality of what happened within the department. In this sense, far from omitting any action that could cover the reported facts, the equality committee was informed and initiated an evaluation procedure in order to avoid and prevent sexual harassment”.
In this way, it held that the employer acted with due diligence after having received the internal complaint from the extra-worker, noting to this effect that: “It is, therefore, that the company gave an immediate response to the appellant in order not to carry out a tolerance of the reported situation, an attitude that can hardly be considered as constituting corporate non-compliance, since the appellant was given protection by initiating the corresponding harassment protocol, which aims to investigate and evaluate what happened, since it cannot be ignored that the complaint filed does not in itself entail the confirmation of the reported extremes until a clarification of the same is not achieved after an investigation of the same.”
Thus, after the company commissioned the investigation to an external agent, and once the respective report was received, the facts reported by the former employee were not confirmed, and the Superior Court of Justice concluded that “There was no physical aggression against the appellant and that he did not receive any insult because of his sexual orientation”.
“It is, therefore, that the rude expressions used in the plaintiff’s department were not directed especially at the plaintiff, nor were they intended to offend or discriminate against him, not being tolerated by the company in any way, which leads to the dismissal of the appeal,” it concluded.
Therefore, the aforementioned case law is relevant and of interest, because it highlights the role and the diligent and immediate action taken by this employer upon receipt of a complaint that could constitute alleged acts of harassment, based on this circumstance for the purpose of dismissing the subsequent claim of self-dismissal, considering that the company gave an immediate response and acted under the protocol established for this purpose once the complaint was received.
For more information on these issues, please contact our Labor Group:
Jorge Arredondo | Partner | jarredondo@az.cl
Jocelyn Aros | Senior Associate | jaros@az.cl
Felipe Neira | Senior Associate | fneira@az.cl
Palmira Valdivia | Associate | pvaldivia@az.cl
Manuel Sepúlveda | Associate | msepulveda@az.cl
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