In a recent resolution of the Second Chamber of the Supreme Court of Justice (2018-000776) a case was resolved on the permissibility of dismissal without employer responsibility, where the legality of the evidence on which said dismissal was based was questioned. This case has as background a conversation that the worker published, along with another partner, in which a colleague was seriously offended.

“The conversation for which the worker was sanctioned was developed in the Facebook messaging system and was obtained by the affected worker, because the person with whom the worker was holding the offensive conversation, used this messaging system on a computer provided by the employer for labor matters. In effect, the computer that was used in the company for invoicing was not for the exclusive use of one of the workers, but, when he was not there, it could be used by any of the other workers for the proper work of billing or even to check prices. It was precisely in these circumstances that the offended worker found the conversation in which he was mistreated because when using the billing computer, he found the open messaging system and proceeded to print the exchange of messages, to make them available to workplace superiors.

“With the conversation in their hands, they called the worker to ask if that conversation was his, to which he answered affirmatively. When leaving the messaging platform open, the worker had full knowledge that it could be accessed by any other worker of the company. This does not imply that the employer has violated the right to privacy of the actor, since the conversation through the messaging system was left open in a computer for the collective use of workers and, consequently, at the disposal of third parties. ”

In this specific case, the Second Chamber of the Supreme Court of Justice decided to accept the evidence provided and to classify it as lawful, since although “The worker did not deliver the conversation personally, it was exposed to third parties with full knowledge that they could have access to it. Likewise, there was access to the exchange of messages through one of the work computers that was commonly used by other workers of the company and not through a private device, so that there was no violation of privacy of the actor as it could be if a private device had been violated, nor were the communications that he had with his co-worker private, because the conversation was left open, available to third parties.

“In addition to this, the worker accepted his authorship of the said conversation, which was offensive with respect to his co-worker. For all this, the Chamber considered that, in this case, it cannot be said that there has been a disturbance to the right to privacy or the inviolability of private communications, so that, when there is reliable evidence of the fault committed by the worker against one who was a co-worker, the dismissal was justified. ”

(*) All the comments issued by the author of this article are made in a personal capacity, without the same being necessarily shared by the legal entities mentioned in the professional review.


Randall González
Labor & Employment