By: Bertha X. Ortega
To refer to violence and harassment in the world of work as unacceptable conduct is because they constitute a violation or abuse of human rights and a threat to equal opportunities and are incompatible with decent work. The first and most important thing is to define what is considered violence and harassment according to ILO Convention 190 and how this issue has been addressed in our domestic legislation and jurisprudence created by the National Labor Court of Appeals on the subject.
Article 1 of ILO Convention 190, states that “…the term ‘violence and harassment’ in the world of work means a set of unacceptable behaviors and practices, or threats of such behaviors and practices, whether manifested once or repeatedly, that are intended to cause or are likely to cause physical, psychological, sexual or economic harm, and includes gender-based violence and harassment….”
In our national legislation, violence and harassment at work have been regulated from two different legal aspects: labor, giving the issue of harassment a special procedural treatment equivalent to that given to the Fundamental Labor Rights, and the criminal, typifying as a crime in the Integral Law Against Violence Against Women labor violence against women and which is defined as “That which discriminates against women in public or private workplaces and hinders their access to employment, hiring, decent and equitable salary, promotion, stability or permanence in the same, demanding requirements on marital status, maternity, surgical sterilization, age, physical appearance, pregnancy test or Human Immunodeficiency Virus HIV/AIDS or other test on the health status of women. It also constitutes violence against women in the workplace to violate the right to equal pay for equal work or function. It also includes the systematic psychological harassment of a specific female worker in order to exclude her from the workplace…”. The latter is very important to take into account, because regardless of its manifestations, it characterizes harassment and labor violence as the conduct or conducts that have as their objective the victim’s departure from the organization or that the victim submits to or renounces the exercise of her labor and/or union rights.
Although labor violence and harassment are unacceptable and punishable behaviors in all Central American legislations, in Nicaragua a special procedure has been created called “For the protection of union freedom and other fundamental rights” including within this special procedure harassment, a procedure with urgent and preferential processing that may have as a consequence, besides the suspension of the violating acts, a reparatory indemnity in favor of the worker, for the physical, psychological and moral damages that such harassment may have caused him/her.
This reparatory indemnity must be requested and quantified by the worker in her lawsuit, being at the discretion of the labor authority to order its payment, with no minimum or maximum amount to serve as a reference for the amount that the judicial authority will order to be paid if it so deems it appropriate. This indemnity is independent of any other indemnity to which the employee is entitled as a result of his employment relationship, such as the indemnity for years of service and/or the indemnity for a position of trust if there has been a violating dismissal of an employee who holds a position of trust.
Violence and harassment at work as behaviors incompatible with decent work, require special attention from the employer, therefore it is very important to address these issues from prevention, through the creation of internal policies that allow workers to understand when violence and harassment at work is being exercised against another worker and/or when they are being victims of violence and harassment at work, being part of such policies the internal mechanisms for addressing complaints if they occur, coupled with the above, the training on the subject.
Similarly, internal regulations, as instruments regulating labor discipline, should contain within the sanctioned behaviors, violence and harassment at work, considering such behaviors as very serious misconduct as grounds for dismissal with just cause. The above, as a dissuasive measure for such behaviors, since what should prevail is the educational and preventive approach, due to the damage that can be caused not only to the affected worker, but also to the work environment and the economic and image consequences for the company.