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27 August 2014
Chapter 2 of the Constitution 1991 is dedicated to what are called 'fundamental rights', which are considered to be inherent to each person. Among others, the chapter includes rights such as the principle of equality, the right to life, the right to due process and the right to free expression of personality.
Fundamental rights versus labour law
It is obvious that such rights must be respected in every way. In terms of labour law, these rights serve to regulate employers' relationships with employees. In addition to establishing rules with which workers must comply in the workplace, employers must respect the rights set down in Chapter 2 of the Constitution.
The issue thus arises to how to detemine the point up to which fundamental rights can interfere with an employer's internal working rules. This can be difficult to determine, because when rules of conduct are established, there are often different interpretations as to what constitutes good and bad conduct. Thus, the use of expressions such as 'moral acts' in internal working rules or a decision to sack a worker based on his or her behaviour can lead to controversy outside the employer's control.
Constitutional Court's position
In a recent revision of a tutela,(1) the Constitutional Court considered this issue. In Ruling T-276/2014 the court analysed a case involving an employee who, during a carnival and during working hours, had worn a costume which showed his buttocks. His colleagues saw him wearing the costume in the company's garage, but nothing more happened. A few days later, the employee was dismissed for a violation of internal working rules. The company argued that, in accordance with company rules, the act performed by the worker was considered to be immoral.
The court made three arguments in favour of the worker:
The court concluded that the worker's behaviour did not constitute gross misconduct. It argued that, within the right to free expression of personality, there is a connection between personal freedom and human dignity, which is evident in the way that a person acts and thinks.
In order to avoid penalties and comply with Colombian labour law, employers must set out internal working rules with specific provisions regarding what can and cannot be done within the company. Employers should always bear in mind the principles and rights that the law grants employees. Employers must act according to the imperatives set down by the legal system, bearing in mind the following:
Labour law seeks to regulate a relationship between unequal parties by giving workers guarantees and ways to protect their inherent rights, and by restricting the way in which employers can act. Employers must thus respect both Colombian law and their workers by acting according to the principles of legality, prior definition, proportionality and reasonableness, and respecting fundamental rights such as equality, privacy and free expression of personality.
For further information on this topic please contact Diego Felipe Valdivieso Rueda at VS+M Abogados by telephone (+57 1 610 6180) or email (email@example.com). The VS+M Abogados website can be accessed at www.vsmlegal.com.
(1) A 'tutela' is a procedural mechanism established in the Constitution for the protection of fundamental rights. Article 86 states as follows:
"Every person has the right to file a writ of protection before a judge, at any time or place, through a preferential and summary proceeding, for himself/herself or by whomever acts in his/her name for the immediate protection of his/her fundamental constitutional rights when that person fears the latter may be violated by the action or omission of any public authority.
The protection will consist of an order issued by a judge enjoining others to act or refrain from acting. The order, which must be complied with immediately, may be challenged before a superior court judge, and in any case the latter may send it to the Constitutional Court for possible revision."
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Diego Felipe Valdivieso Rueda