By Javier Casartelli, Lawyer
jcasartelli@estudiomalis.com.ar
Recently, media echoed of a ruling of the Supreme Court of Justice about labor trials. Headings like “Court Ruling: If an employee loses the labor trial, he will have to pay de expenses” (Clarin 07/04/2017), “The Court established that an employee that loses the labor trial, must pay for the expenses” (La Nacion 07/04/2017) or “The Court fail that an employee who loses the labor trial must pay the expenses” (El Cronista 07/04/2017), were read across the country.
In order to understand the Court´s position, is necessary to analyze all the steps of the trial, that were based on a worker´s claim against his Labor Risk Insurance (ART) for an accident in itinere (takes place when the worker is going from home to work or the other way around). In this case file, it was not possible to prove the physical disability due to the fact that the worker has never shown up to the review of the medical expert. Because of this, the judgment of the first instance rejected the plaintiff and imposed the expenses of the trial – in a technical way, meaning attorneys fees, experts and justice tax, around 28% of the total amount claimed or of the final sentence – in charge of the worker. The legal principle of the “objectiveness of defeat” was applied, that is to say, “if you lose, you pay”. Nevertheless, judges can make an exception when they consider that the one who loses the case was convinced that his claim was fair enough, a concept that lacks objectivity and is attached to many interpretations.
The sentence was appealed and the Third Court of Appeal for Labour Afairs ordered a new review from the medical expert, even though the worker once again did not show up. In this way, the reject of the plaintiff was confirmed but the imposition of the expenses was modified, as they were imposed to the ART. A particular argument was used in order to move away from the “objectiveness of defeat” principle: “the worker understood that he had the right to claim for the accident suffered, as well as the sued company admitted receiving that claim in an administrative level”. That is to say, not only the exception of restrictive character was applied but also imposed on the defendant to pay all the expenses of the trial that the company had won!
The Supreme Court said that the rejection of the demand was due to nothing but the worker´s attitude of not going to the appointments with the medical expert and so unlinking him of the responsibility of paying the expenses of the trial “goes away without any grounds from the principle that establish that the defeated in the trial must pay all the expenses of the other part”. Likewise, the Supreme Court pulverized the other argument wielded by the Camera to impose the expenses to the ART, establishing that there is no relation at all with the hypothesis, as “only the worker´s responsibility had to be judged due to the expenses of the process, which result was adverse as consequence of his negligent act” and with that the Chamber of Appeals´s decision was revoked.
This is a recurrent subject in labor lawsuits lost by the employees, as by law they own the “benefit of poverty”, that is to say, they do not pay justice tax at the beginning of the trial as other people or private entities do, who initiate lawsuits for claims of economical content (civil, commercial, administrative contentious, labor) approximately 3% of the total claimed, they do not pay at neither the end of the procedures. A judicial tradition exists by which a benevolently exception is applied to this cases, which has been generating a culture of claiming massive sums even having knowledge of its inadmissibility as courts will always “give something” or leave the employee in a better position of negotiation before the event of a possible settlement agreement. To clarify, not all labor lawyers are engaged to this kind of litigation but it is an endemic problem.
This Supreme Court´s ruling fixes a guideline in face of the irrational and irritate imposition of costs to a victorious party. But in context (having in mind the recent claim of president Macri regarding the “labor trials mafia”) the Supreme Court opportunely shows a path to other judges in order to apply the law more effectively and slow down the abuse in labor trials.
Definitely, if that change happens, at least in a gradual form, the rule will be applied more than the exception, and that will give more quality and probity to Labor Justice.
