Due Disciplinary Process to dismiss union workers during strike pronounced illegal

Juan Diego Gallo Lozano & others v. Avianca S.A. & others

Date:  12/11/2019

Judge-Rapporteur:  Carlos Libardo Bernal Pulido

Concurrence:  Antonio José Lizarazo Ocampo.  José Fernando Reyes Cuartas

Dissent:  Alejandro Linares Cantillo.  Cristina Pardo Schlesinger

Facts.  The plaintiffs, airline pilots from AVIANCA (Airways of the American Continent) and also members of the Union (ACDAC), raised a formal grievance, whose settlement stage was ineffective.  Then, work stoppage took place and two judicial processes arose: one, related to the resolution of the economic conflict, taken to a Compulsory Arbitration Tribunal, and, the other, concerning the legal qualification of the cessation of activities, was referred to the Appellate Court – Labor Room.

In the first case, an arbitration award was issued setting a salary increase and other financial benefits to the pilots.  It also established that the company undertook not to directly or indirectly exercise any kind of retaliation against the personnel of ACDAC. 

In the second process, the strike was declared unlawful, but the Court warned the company not to dismiss involved workers of the union.  Upon appellation of this decision, the Higher Court confirmed the unlawfulness of the work stoppage and revoked the order to prevent layoffs.

Therefore, the management initiated disciplinary proceedings against the plaintiffs and then, terminated their contracts. Since the Ministry of Labor was not informed of the last actions, the demandants claimed that the decisions became offending of their fundamental labor rights.  Other irregularities were alleged by the petitioners regarding the failure to guarantee their right to defence during these proceedings.

Issue: Should the management inform the Ministry of Labor before dismissing strikers after the work stoppage was pronounced unlawful?  Should it follow all the procedures to guarantee the right of defence of the workers?

Ruling and reasoning.  Yes.  The Court explained that following due process steps is mandatory to take measures against the strikers, even after the work stoppage was declared illegal by the Appellate Court.

In accordance, the Court GRANTED the protection and ruled the invalidity of all the disciplinary procedures and decisions promoted by AVIANCA’s management against the actors.  It ordered that, if the plaintiffs so request, it should immediately reinstate them to an equal or better position to the one they were performing before the discharging took place.