A frequent question in the Moral Harassment trial, relates to the worker's proof of it. Indeed, Chilean jurists trained in the classical theory of responsibility are concerned to venture an action that is very difficult to prove due to the very characteristics of the doctrinal classification of harassment at work. In this sense, the concept of harassment, mistreatment and abuse emerges from the bottom of the occupational medical doctrine, to a victim, who in the middle of the solitude of the work environment, is forced to suffer, for a time or so long, repeatedly, and that due to its severity produces, after that time, psychic or psychosomatic illnesses. By the way, the lawyer appreciates that as in crimes against sexual freedom, moral harassment is carried out with extreme reserve,clandestinely or with the consent of those around the harassed, which makes it difficult to prove the crime.
In these circumstances, it seems impossible to sustain the controversy with any chance of success. The harassed man, then, faced with the calculated response of his lawyer, enters into utter despair, for he realizes that his working life has ended, the destruction of his intimate being, that is, of his personal dignity, remaining the sole result of it..
Instead, a more diligent investigator must first determine the action and its procedure.
Undoubtedly, it is a double action, in case the worker is still providing functions for his employer in a field of workplace moral harassment. In effect, a protective action corresponds first, in order to reestablish the beloved rights, especially the dignity, of the worker, and in parallel, physical and mental health.
This tutelary action must necessarily be known by the Labor Judge for reasons of competence. Thus, it is derived from the provisions of art. 420 of the Labor Code, and fundamentally in the Guardianship Trial, lodged in the New Labor Procedure, which will take effect in the coming year.
In this order of ideas, the Guardianship Labor Trial and the Moral Harassment Action deduced before the Labor Judge, may be accompanied, in the current process, by a compensation claim, so that the employer, indemnifies the Damages and Damages caused by Moral harassment, to the health and dignity of the harassed, which will be aimed at accrediting Damage to Health and Moral Damage, in addition to other damages.
Keys to the labor procedure
Known is the maxim that all Damage, caused by guilt or intent, must be compensated by whoever causes it. It obeys the concrete application of the Classical Theory of Liability by fault, which is generally recognized by our substantive Law. However, Labor Law has its own keys that without eliminating the classic concept, alleviate the difficulty of the test for the benefit of the victim.
To understand this proposition we must bear in mind that labor relations are dependent and subordinate. This concept of subordination and dependency operates in both directions, that is, by obliging the worker, but also the employer. Thus, derived from the domain right, the employer organizes, directs, controls, commands, orders, distributes, maintains discipline, order and security and prioritizes the productive work according to its needs, with the only and clear limitation, which cannot act against the dignity and fundamental rights of their dependents, nor economically undermine them. The Worker in this aspect, has nothing to do, only fulfill the functions for which he has been hired.
However, the worker, for this sole circumstance has acquired a compensatory right of the employer's omnipotence, is the obligation that the latter has, recognized in numerous rulings of our highest Courts, for the benefit of the worker, the Duty of Care. In other words, the employer undertakes to take the risks that he has created with his company and which are manifested in the care of the worker, so that he is returned to society and his family, with the same health, creative capacity and labor, which had at the time of hiring him.
It is the classic "I give so that you give me", if this did not happen, there would be an unpaid obligation and a situation of enrichment without cause, because the employer would appear with all the rights and the worker with none equivalent, which cannot be considered a situation of equity, and certainly alien to the General Principles of Labor Law.
Duty of employer care
Article 184 of the Labor Code has given rise to numerous jurisprudence on the Employer Care Obligation. The provision indicates that he is obliged to take "all" the "necessary" and "effective" measures to safeguard the life and health of the Workers. In this regard, there are numerous regulations of a legal nature and also of production standards, which amount to something like the Lex Artis in the field of the production of goods and services, of how a task, work or work should be done, however elementary it may be., these are the Chilean Norms applicable in production processes and the requirement of which derives from international studies and homologation. In other words, the productive tasks have their own certifications and, in addition, the Law requires the employer to take preventive measures,all this based on quality and safety in production.
In this regard, the Hon. Supreme Court has recognized that in addition to a requirement of "result", the expression "effective" used by article 184 of C. del Tr. implies the extreme diligence with which the employer must act in ordering his business tasks, in order to safeguard the integrity of the worker and his life.
These requirements are not unique, therefore, Supreme Decree No. 40, widely known as the "Obligation to Inform", requires the employer to indicate "timely and properly" the risks that the worker faces on the job. The characteristics of them in terms of their nature, smell, color, materiality, and other characteristics, and also, the correct ways of working and the protection elements to avoid accidents and diseases.
In short, it is the employer's obligation to assure the worker that he will return home in the same health conditions in which he arrived at the company. The Employer then responds for the slightest fault.
Another civilist concept that should be kept in mind is the one that expresses that in a contract, the breach is understood as guilty. In other words, if an accident that causes incapacity for the worker occurs or becomes in a labor function, work or task, it must be presumed that this was due to the employer's fault, since he is directly responsible for the health of his workers.
Judgment and proof
This preamble is necessary to understand what happens in the matter of evidence in the labor trial. In fact, we must always have as a basic budget that it is an accident or illness that occurs at work or in the fulfillment of a function ordered by the employer. All work in hours dedicated to this and contracted, in the work, company or task, is, without a doubt, a subordinate job. This follows from the definition of an Employment Contract in art. 7 of the Branch Code.
Consequently, whoever claims that the accident occurred in these circumstances is not of an occupational origin, bears the burden of proof. This conclusion is also derived from the employer's duty of care. In more defined words, every accident of a worker that occurs in time and space is an accident at work, except for legal exceptions, which are: force majeure outside the work and the worker's own "intention".
The accident at work, other than the disease, in our legislation can be: due to work or on the occasion of work. The difference is that in the first case, "because", the reason for the work is the primary and direct origin of the accident.
In the second situation: “on the occasion of work”, the work itself does not appear directly linked, but indirectly. It is considered that all the actions destined to food, or those that are related to physiological needs, constitute indirect actions of work, since they are necessary for the worker to continue in his duties.
As for occupational diseases, article 7 of Law 16,744, requires that these be "because of work." That is, the immediate and direct reason must be work.
This aspect is relevant, then, it has been argued, by some authors, that bullying or mobbing is not caused by work and is not an occupational disease. What is the foundation of this position? Well, that bullying comes from a third party and not from work.
In this way the concept of moral harassment is interpreted in a relaxed way and making an artificial separation between work and people who work in the same task, authorizing so that the highest-ranking employees or even the same work colleagues can feel free to commit this illegal without compromising the company.
This concept is not compatible with the legal proposition of a company: “a company is understood to be any organization of personal, material and immaterial means, ordered under one direction, for the achievement of economic, social, cultural or beneficial purposes, endowed with a legal individuality determined. ”
Being, then, an organization of personal means ordered under one direction, the aforementioned proposition falls, since the employer cannot separate himself from this management condition, in addition, it is understood that the worker acts in an environment organized and directed by the employer, who must keep the security measures and exercise the duty of care.
From another point of view, moral harassment is undoubtedly directly related to work, since it is the unjustified aggression suffered for a time precisely at work and that is produced by environmental toxicity in terms of HR, a matter which depends directly and exclusively on the employer.
The means of proof
Moral harassment can be proven by any means of proof. It is a fact and as such it can be observed by witnesses, or these, to have had knowledge by other people of these facts. Documents: letters, memos, notes, faxes, emails and any instrument that records some form of ill-treatment, discrimination or workplace violence.
The experts, are in their reports, substantial to investigate the existence of moral harassment. Psychoterrorism leaves traces in the spirit and in the morale of the workers. Psychic and psychosomatic illnesses, therefore, their reports are of the utmost importance in this matter since generally the harasser relies on the help of others or the fear of others, who deny or adopt the position of moral cowardice typical of those who are not yet sharing unlawfulness, accept it out of fear, shame, or other despicable reason.
The experts in this matter are psychologists, psychiatrists, neurologists and doctors in general. Moral harassment, in addition to causing psychic damage, causes psychosomatic damage. By reviewing Supreme Decree No. 73 of March 7, 2006, which introduces the concept of “work neurosis”, we can understand more clearly what the consequences of bullying refer to. That is to say, in Chile the incongruity occurs that the consequences of moral harassment at work are defined, even when there is no Law that typifies this crime. However, the harmful result is produced and proven, must be sanctioned by the Judge.
The most important trades are those that allow to bring to the process the clinical records of the treatments in institutions or medical establishments, public or private. The complaints made before the Labor Inspection and the background that the corresponding Administrator or Mutual has on the matter.
If it is possible to have the defendant's own confession, it relieves the victim of all evidence.
I do not want to leave out an important and forgotten means of proof: Presumptions. It is known that these are facts proven in the process that allow the Judge to presume another that is being litigated. Their evidentiary merit is found in the Civil Code and they are not eradicated from the labor procedure, so that if the requirements of being serious, precise and consistent are met, only one of them can make full proof, form conviction and serve as a legal basis to establish procedural legal truth. (Civil Code.- Art. 1712. The presumptions are legal or judicial. The legal ones are regulated by article 47. Those that the judge deduces must be serious, precise and concordant.)
How to appreciate your evidentiary merit
In this matter, it is known that the evidence is assessed according to the rules of sound criticism. To remember something that is taken for granted, and therefore forgotten, we will transcribe the pertinent provisions of the Labor Code:
Art. 455. The court will appreciate the evidence according to the rules of sound criticism.
Simply legal assumptions will also be appreciated in the same way.
Art. 456. When evaluating the evidence according to sound criticism, the court must express the legal and simply logical, scientific, technical or experience reasons by virtue of which it designates value or rejects them. In general, special consideration will be given to the multiplicity, seriousness, precision, agreement and connection of the evidence or antecedents of the process used, so that the examination logically leads to the conclusion that convinces the sentencer.
This article finds the central reason for the evidence of moral harassment in relation to its effects. These are characteristic and the logical or scientific reasons agreed with the other antecedents of the process, allow the Judge to make a clear and effective conviction about the labor crime, since the traces are perfectly searchable by way of medical science, especially psychiatry.
Conclusions
In this brief examination of the formal aspects of labor matters in Chile, we can conclude by adopting the position of the IC of Appeals in Valdivia, which has established the existence of the facts by way of environmental toxicity in the working life of a Public Corporation. that they presume an attack on the fundamental rights of workers, especially physical and mental integrity and personal dignity. The evidence is extensive and available to victims to rectify the corresponding claim. What is missing, in addition to the Law, is the conscience of those who administer the superior values of Justice and Equality before the Law, and a little more daring in the protection of these fundamental rights,fulfilling to the letter the Constitutional mandate and the organic laws that order to protect those who claim their rights even in the absence of Law.
Once the Damage caused by Moral Harassment, whether physical or mental, has been established, the weight of the Law must proceed to avoid continuing to attack the fundamental rights of the worker and, in addition, to repair said damage or prejudice.
Moral Harassment, is an illicit and the proof of this is what is called in "diabolical" doctrine, since it is the employer who must prove that the damages in the person of the worker are not the result of an omission to the Duty of Care that The law requires you regarding the life and comprehensive health of your dependent and subordinate.
