In a recent ruling (CAS. LAB NO. 24775-2019), the Peruvian Supreme Court sided with a company which terminated a union representative for insulting his manager in a group WhatsApp with other coworkers. The decision ensures employers in Peru that they can reasonably exercise their disciplinary power in situations of deliberate offenses, even from a protected union member or on social network.
A few key takeaways from the decision:
Peruvian laws protect employees from being discharged due to their union membership or for being workers’ representatives. In this case, the terminated employee argued that he was wrongfully dismissed because of his union leader status. However, the legal protection against dismissal of union leaders was to protect them from being retaliated for defending labor rights or seeking to improve the working conditions for their members. In this case, according to the Supreme Chamber, protection by trade union jurisdiction should be extended to those leaders who have committed verbal or written offenses against the employer or his representative.
The other debating point is if WhatsApp constitutes a “workplace” as the laws regulates that “violent acts, serious breaches of discipline, insults and disrespect addressed to the employer which take place inside the workplace” is a reasonable ground for dismissal. Even though the incident occurred on a social app, the company is entitled to conduct discipline as other employees were involved, the Court decided.
The Supreme Court decision reversed a previous one from Superior Chamber of the East Lima Court which ruled the dismissal unreasonable and asked the company to reinstate the former employer. The previous decision did not consider the insult generating a "disturbance that makes the continuation of the employment contract impossible." However, the Supreme Court highlighted that offending a person because of their physical appearance or referring to them in a derogatory manner at workplace should not be tolerated in any context.