Castellán

WHAT IS "WORKPLACE HARASSMENT" OR "MOBBING"? IS IT PROVIDED FOR IN LABOR REGULATIONS?

This concept is not legally regulated in our country (although there are some projects) so it is necessary to resort to labor doctrine and jurisprudence, which allow us to glimpse some guidelines or notions that define this figure. Likewise, it should be noted that in the judicial process, the general procedural regime is followed, and the Judge handling the case must determine the responsibilities and corresponding compensations in each specific case.

However, regarding the applicable regulations for the procedure in case of an administrative complaint before the MTSS, it should be noted that, in the absence of a specific rule, partially the Law on Sexual Harassment No. 18.561 is applied, including the holding of hearings, with interrogations of witnesses, etc. The General Labor and Social Security Inspection - IGTSS has a team of Inspectors to deal especially with these issues, who advise on the circumstances that may constitute a violation of rights, and whose initial action is sometimes without notice to the accused.

Now, it is necessary to first point out concisely that -Workplace harassment- (also known by its English term (Mobbing), is that intentional behavior, manifested in the work environment, in a repeated or prolonged manner, directed by one or more persons against another, with the purpose or result of causing fear, or harm or injury to the moral integrity of the affected person. Insults, shouting, verbal humiliation, discrimination, isolation, not assigning tasks to the worker or intentionally overloading them with work, are some examples of this type of actions.

These behaviors translate into acts of psychological violence or offense to dignity that are systematic, and with a long-term effect or consequence, which distinguishes them from poor relationships or simple antipathy. That is to say, the intentional element allows to differentiate harassment from work stress, or from difficulties in interpersonal relationships that may arise in the work environment due to work reasons or differences in terms of position/hierarchy or seniority.

To determine that there is indeed Harassment, the General Labor Inspection (MTSS) must conclude, after its investigation, that the -harasser- intended to cause harm. It is understood then that to make this qualification, it is necessary to exercise certain prudence and have sufficient objective and probative elements.

WHAT IS THE BASIS AND SCOPE OF EMPLOYER RESPONSIBILITY?

As is known, the employer is responsible for the work environment, just as it is responsible for safety and hygiene. In this regard, there is responsibility even when the offensive behavior does not come from a company representative, but from another employee (harassment among peers or equals). Our Constitution, in its article 7, expressly recognizes the right of the inhabitants of the Republic to - be protected in the enjoyment of their life, honor, freedom, security, work and property-. Among other reasons, it has been understood that there is a breach of the employment contract, due to lack of due diligence in protecting the dignity, safety and/or other fundamental rights of its workers (both physical and mental health, honor, freedom to work, etc.).

WHAT ACTIONS CAN THE EMPLOYER TAKE?

As - mitigating factors- of this responsibility, it is taken into account the existence of an HR office open to dialogue, with mechanisms or procedures specially provided, to turn to in case of feeling affected by any circumstance of this kind, any of the company's workers. A procedure that the MTSS will verify that it actually exists and is effective. That is to say, it is suggested that companies have preventive policies against workplace harassment, such as the implementation of a procedure or - protocol- of action in the face of complaints of this type and in general in the face of complaints of violations of rules that constitute fundamental rights of workers. In that context, the affected worker may file a complaint internally within the company or with the General Labor and Social Security Inspection (MTSS).

If the complaint is received by the company's management, an immediate investigation of the reported facts must be carried out. Otherwise, the aforementioned responsibility could be incurred. It must be taken into account that the MTSS will analyze whether the accusation was addressed, and taken seriously (if an investigation was conducted, hearing from all those involved to understand the facts and their consequences). It is valued that the matter be handled promptly and, depending on the case, confidentially, avoiding unnecessary - confrontation- between the alleged harasser and the complaining person.

The worker who is a victim of harassment, who feels morally or physically attacked, must be able to have enough freedom to go and address the issue to the company's Human Resources office, or the authority in charge of personnel matters. It is also important to verify if the Internal Code of Conduct sanctions such attitudes, and it has been seen that the implementation of concrete preventive actions such as: organization of integration and awareness activities, training in labor and interpersonal relations, coaching, etc., as well as the posting of announcements on bulletin boards, or the dissemination of - manuals- or - guides- (where the prohibition of any such practices is stated), etc., is evaluated as a very positive aspect (relevant when determining responsibilities and possible sanctions).

Ultimately, on the part of the company, in the event of a complaint being filed with the Inspection, it must be able to prove that the organizational will is to have a good work environment, in accordance with Labor Law regulations.

WHAT CAN BE THE CONSEQUENCES, IN ADDITION TO FINES (MTSS)?

Finally, it should also be noted that, the victim worker, without prejudice to the administrative complaint, could choose to consider themselves indirectly dismissed, if the situation is untenable or apparently irreversible, in which case, once the existence of harassment is proven, it entitles them to a special compensation to repair the damage and loss of employment (which will be determined by the Judge handling the case). Indirect dismissal occurs when there is a breach of contractual obligations by the employer of such magnitude as to make the employment relationship unbearable. Without prejudice to the above, the exception of the configuration of notorious misconduct (on this topic we refer to the previously published work) applies.

FINAL CONSIDERATIONS

In view of all the above, and considering that each situation will be evaluated based on the specific case (both administratively and judicially), the importance of the existence of a clear preventive policy reflected expressly in the Internal Regulations, as well as through the implementation of an Action Protocol, is highlighted, and it is also advisable to have professional advice that guides the company on how to proceed in the face of this type of complaints.

Montevideo, July 17, 2015.