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Tackling workplace harassment and bullying in Argentina
09/06/2021
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Mar del Tuyú, Buenos Aires, Argentina
Authors
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MBB
Mercedes Balado Bevilacqua (pictured) is a founder and managing partner, and Cecilia Acosta a senior associate, at MBB Balado Bevilacqua Abogados

On 19 March 2020, the Government of Argentina established through Urgency Decree the Mandatory, Social and Preventive Isolation. Consequently, many people began to work remotely and others went to their workplaces to carry out activities considered essential. In both cases, the demands for work changed and even increased.

Even though the restrictions have been easing gradually, the government is still encouraging that those activities that may be performed remotely are rendered under the home-office regime. In this sense, Law No. 27, 555 and its regulatory Decree No. 27/2021 have been passed addressed to establish the rights and obligations of employers and employees under this modality.

A report issued by the Office of Advice on Workplace Violence (OAVL) warns that in the first nine months of 2020, inquiries and complaints about violence in the workplace increased 18.8% over the previous year; a growth in complaints from men was also noted.

In view of the above and the relevant data, we could say that rates of bullying and harassment may have increased due to the less controlled environment of online communications. Therefore, this creates a need for companies to put in place workshops addressed at reminding staff about the importance of a workplace free from any type of violence and encourage employees to address HR in case of discomfort.

As for the specific risks to be taken into account by employers, the OAVL warns that in the context of the pandemic and the corresponding isolation, economic violence significantly increased, reaching 20% ​​of the total complaints between the second and third quarters of 2020. The complaints are related to the termination of the employment relationship, reduction and/or failure to pay wages, threats of dismissal, and pressure on non-essential employees to break isolation.

On the other hand, new modalities of psychological violence have appeared as a consequence of remote working outspread, such as emotional blackmail and overly demanding work; unclear directives or lack of them during the home-office regime.

It is, therefore, advisable to pay attention to signs that could determine the possible existence of labour abuse or result in harassment complaints that, among others, include the following:

  • increase of sick leaves;
  • increase of work-related accidents;
  • increase of labour claims;
  • increase of employee resignations;
  • increase of absenteeism;
  • dissatisfaction with work;
  • repeated complaints about the treatment of superiors or coworkers towards employees;
  • increase of excuses to avoid certain meetings; and
  • lack of replies to work emails and/or calls.

In a similar sense, consider the importance to comply with the Argentine Labour Law No. 27,555 and its further regulatory decree (governing home-office regime). The main objective of this law is to determine the legal framework applicable to remote work for those activities that due to their nature may be done through the home office.

Particularly, among other aspects, it sets that employees living with or taking care of children under 13 years old, disabled people, or elderly adults with special needs, duly evidenced, have the right to perform their tasks during compatible hours with their care tasks and/or to interrupt their working day. So, any act, conduct, decision, retaliation or obstruction made by the employer that violates this right will be considered discriminatory. Therefore, the affected employees may file a claim requesting to the employer to stop with this conduct under penalty of considering themselves constructively dismissed and request the payment of the corresponding severance compensation plus damages.

Sexual harassment

In Argentina, there is no specific regulation for sexual harassment in the workplace (except for the public sector). Section 75 of the National Employment Law (Law No. 20,744) establishes that employers have the duty of safety. Currently, such duty does not only involve the compliance with safety and hygiene standards and the measures taken to avoid damages to the employees’ physical health, but also the obligation to provide a healthy workplace free of moral or sexual harassment, discrimination or any type of labour violence in order to avoid physiological harm to employees.

In order to comply with the employer’s duty of safety and to discourage any negative behaviour that may impact negatively on the workplace, it is strongly recommended to put in place a code of conduct and/or HR policies addressed to handle the mentioned matters in an adequate manner with the corresponding discipline measures in case of violation of such codes or policies, considering mandatory regulation and with the advice of local counsels. Employees must be notified about the existence of a code of conduct and the employer must give them a copy of this code. It is advisable that employees sign an acknowledgement as evidence of notification and agreement with any code of conduct.

In case the company suspects that an employee has committed serious misconduct or breached a company’s policy regarding sexual harassment and mobbing, investigation procedures may be implemented taking into account the recommendations below.

Establishing reporting frameworks

In order to establish an effective bullying and harassment reporting framework, we advise employers to draft a prevention policy or code of conduct that should include:

  • raising awareness on this matter, to discourage some practices and thus allow the visualisation of cases of workplace violence;
  • provide for appropriate training to HR;
  • provide for a safe procedure for employees to trust when making a complaint or raising a concern;
  • put in place an investigation process to assess the claim;
  • protect employee filing the claim by taking preventive measures to avoid potential further harassment;
  • provide a tailor-made solution once the investigation procedure is over.

It is essential to create communication channels that allow the policy’s dissemination and disciplinary measures to be implemented in cases of non-compliance.

This will guarantee employees the ability to report an incident quickly and without fear of retaliation. In this sense, the company must have a specific area of work for conflict resolution, with the necessary confidentiality when providing advice or receiving complaints.

In addition, it is important to determine a procedure to assertively handle any complaint, and conduct an effective investigation and provide for disciplinary measures addressed to the conclusion of the investigation procedure that may also include discouragement of false claims.

Investigating complaints

To conduct an effective investigation of harassment, the company’s HR department must take into account the following:

  • implement confidential means to report an abusive situation. Keep confidentiality during all the investigation period in order to protect the potential victim and other workers involved;
  • respect the constitutional right to privacy of all employees affected. The investigation process must not be discriminatory or violate employees’ privacy or dignity;
  • take into consideration the potential victim’s needs. Inform that the situation is being investigated and take the necessary measures to avoid the victim to continue in touch with the harasser;
  • impose disciplinary measures in case of false claims of sexual harassment or any other type of workplace violence;
  • impose disciplinary measures once harassment has been discovered. Disciplinary measures against the harasser may include suspension up to dismissal with fair cause, depending on the particular circumstance of the case; and
  • the language of all documents and policies should be in Spanish to avoid the invalidation of the procedure considering local labour employee protective regulations.

Before imposing any disciplinary measure, the employer should seek legal advice addressed to avoid any exposure for the company and be aware of the consequences.

These precautions may prevent the success of claims arguing that termination – or any other disciplinary measure the employer may impose – has been abusive or illegal.

Reducing pressure on remote workers

In order to reduce employer pressure on remote employees, the company must comply with the provisions of Law No. 27,555 and its regulations, when established that working day must be previously agreed in writing in the employment contract, according to the current legal standards. In this respect, platforms and/or software used by the employer to the specific purpose of the home-office regime must be developed taking into account the working day, preventing the connection during time-off.

Overtime hours should be prohibited unless express authorisation considering an extraordinary need. Also, employees under the new home-office regime are entitled to the right to disconnect during time-off and leave periods. Also, employers are not allowed to request employees to perform any tasks, or to send communications during time-off.

Final considerations

In addition to a specific policy of the company and the implementation of the aforementioned complaint procedures, it is necessary to:

  • pass a specific regulation contemplating any work violence situation should be passed to provide with a concise framework that will mandatorily regulate the private labour relationships;
  • provide for preventive measures making pools within the employees in a regular manner to effectively address any concern related to workplace violence;
  • provide training courses for all employees levels so that all the work universe is aware of the permitted and discouraged behaviours together with the corporate mission and view in terms of the working environment; and
  • have an efficient follow-up procedure with professional and expert advice.