Labor Law, Litigation.
A lawyer from the Universidad de Los Andes with postgraduate studies in Labor Law and Social Security at the Universidad de Chile, partner Rodrigo Ugarte directs the work area of Aninat Schwencke & Cía. since 2008, and is mainly dedicated to advising companies on corporate, social security and immigration matters. He has represented numerous national and international clients in collective bargaining, structuring of companies, compensation plans for executives, outsourcing of services, and preventive labor audits. He has served as an advisor to the Labor Committee of the Instituto Libertad and the Asociación de Supermercados de Chile, ASACH AG.
Mr. Ugarte has extensive experience in strategic labor litigation, being an active litigant before the courts, where he has represented important national and transnational corporations, such as Synapsis, Prolam Young & Rubicam, Hill + Knowlton, Actionline, Balfour Beatty Rail Projects, CAF Chile, Viñas Bisquertt and Viña Casas del Toqui, among others.
- Representation of Action Line S.A. in a Labor trial: Actionlines’s former manager, Pablo Riccheri Naddaf, sued the company claiming serious breaches of his fundamental rights as he explained he was dismissed because he was close to the labor unions, alleging discrimination against him and the breach of the freedom of opinion right, soliciting the Court to condemn the company to pay the corresponding legal severance compensations with the special sanction according to his breaches, and the compensations and monthly remunerations that corresponds to the special action called “dismissal’s nullity”. This lawsuit was presented while Actionline´s labor union situation was critic, having done illegal strikes and sued the company because of plenty of supposed anti- labor union practices. The defence of the company was able to demonstrate that the plaintiff’s allegations were entirely false, and that his lawsuit could not be successful.
The case finally ended with the Labor Court ruling denying the fundamental rights legal action, as the plaintiff was not able to prove what he meant. The Court of Appeals and the Supreme Court ruled on the same way.
- Representation of Actionline S.A. in a labor trial: The Labor Office (“Inspección Provincial del Trabajo”) sued Actionline regarding the negative to accept the reincorporation of 30 former employees which were dismissed while they had special privileges that protected them from being terminated, alleging that fact constituted an anti-union practice. The context of this lawsuit was a illegal strike starred by approximately 100 employees which main direct result was the loose of the company’s main client, and the consequently loss of job positions. The dismissed employees joined and constituted a labor union the day after their contracts termination, which gave them special privileges that started 10 days before the union’s constitution. On this context, they were illegally dismissed, as their privileges protect them from their contracts being terminated. Actionline alleged the labor union was constituted after the working contracts terminations, with the sole purpose of withdrawing their dismissals. The case ended with the Labor Court ruling, which stated that there was not an anti-union practice by the Company, and that the employee’s labor contracts could be terminated.
- Representation of Synapsis SpA in a Labor trial: the labor union claimed the breach of the collective contract, specifically, its sixth clause referred to the “performance bonus”, alleging the company did not pay it in regard to 2014 exercise, claiming the payment of the 70% advance of it to each employee. The labor union argued that the 70% advance of the bonus was not subjected to any requirement, so it had to be paid every year under every circumstance, and, argued in relation to the totality of the bonus, that the requirements and conditions for its payment were duly fulfilled. The company presented its defense and evidence, demonstrating that the payment of the 70% advance of the bonus was subjected to the same requirements that the entire bonus, and, demonstrating that those requirements were not fulfilled on 2014. The labor court ruled in favor of the company, rejecting the lawsuit in every part, condemning the labor union to pay the legal costs of the trial.
- Representation of Asociación Chilena de Seguridad (ACHS) in a labor trial. The ACHS was sued by its former employee, Felipe Caroca, an ACHS’s doctor who specialized himself in orthopedic surgery and orthopedics, with a 3 years fellowship given to him by ACHS, paying his employer his studies and maintaining the 70% of his monthly remunerations, even though his labor relationship was suspended. To obtain the said fellowship, he subscribed a contract by which he agreed to work for 3 years after his studies to ACHS under certain conditions. When the former employee finished his studies he started a sub-specialization that lasted for 2 years, subscribing an agreement that established that those years were not included on the 3 years he has to work to ACHS because of his fellowship. Once he finished his sub-specialization the company offered him a position and a place to work in order to fulfill the conditions agreed in the fellowship contract, offer that he never accepted, alleging that the sub-specialization agreement was null, and terminating his labor contract claiming that the company seriously breached its obligations because it unilaterally modified his contract. The Labor Court rejected the lawsuit in all of its parts, and the Court of Appeals rejected the plaintiff’s nullity recourse.
- Representation of Empresa Nacional del Petróleo (ENAP) in a labor trial: Mr. Carlos Contreras, ENAP’s former employee, sued the company claiming for moral damages compensation, as he suffered severe sensorineural hearing loss, which he considered a professional disease, stating it meant 60% of labor incapacity.The former employee worked since 1998 up to 2008 for ENAP, in Estrecho de Magallanes oil platforms, alleging that on his daily duties he was exposed to high amounts of noise, losing his hearing. The company’s defense stated that the legal action term to be filed has expired, as the disease diagnostic date was August 22nd, 2007, and the plaintiff was invoking the date of a latter medical authority’s resolution, December 9th, 2011. The defense, as well, proved that the labor incapacity percentage was 0%, invoking a latter medical resolution, and that the disease was not a professional one. The Labor Court ruled in the company’s favor, declaring the action’s expiration, condemning the plaintiff to pay the legal costs of the trial. The Court of Appeal rejected the plaintiff’s nullity recourse.
- Representation of Termas de Jahuel on a labor trial: María José Gallardo, a Termas de Jahuel employee and a labor union director, sued the company alleging her fundamental rights has been breached, and that her labor contract functions were modified unilaterally, claiming, therefor, the payment of an important amount of money to compensate her supposed moral damages. The company proved that the labor contract functions of the plaintiff were not breached, ruling the Court in its favour, establishing as well that the correct labor action to interpose in regard to constitutional rights violations and contracts unfulfilling is not the damages compensation action. The plaintiff filed a nullity recourse at the Court of Appeals, which was abandoned.
- Representation of Asociación Chilena de Seguridad (ACHS) in a labor trial: Mrs. Veronica Lillo, ACHS’s former employee, sued the company claiming the payment of her severances without any legal cap, as she argued she contributed during all of her labor relationship with the 2% of her remunerations to a special fund created to compensate the dismissed employees for their years of services without any cap. In addition she claimed that ACHS created the fund -which is a legal entity- to violate its legal obligations with the employees, soliciting the Court to declare they are the same entity. Finally, she claimed her dismissal was unjustified. The lawsuit was rejected in every part, as ACHS could prove that the dismissal cause invoked in the said case did not allow the employee to obtain her severances without cap, that the fund was not created to damage the employees, and that her labor relationship termination was completely justified. The plaintiff interposed a nullity recourse, which hearing is pending at the Appeals Court.
- Representation of Editorial Televisa on a labor trial: Mildred González Abusleme, Televisa’s former employee, sued the company claiming that during all of her labor relationship she received commissions for every sale she did, but that she did not received the special remuneration that legally accrued from it, called “semana corrida”, asking for its payment. The company’s defence stated that the remuneration identified as “commissions” in her labor contract, did not fulfill the commissions legal requirements, so, therefor, her remuneration did not accrue “semana corrida”. In addition, the company argued that those commissions should be accrued in a daily way, but that in this case, each sell is done in more than one day, even in months, so the commissions did not fulfil the said requirement. The Court rules in the company’s favour, being the ruling fix and executable. This is an important ruling on the matter, which has been highly argued in Courts.
- Universidad de Chile, Postgraduate in Labor Law and Social Security, 2005.
- Universidad de los Andes Law School, 1999.
- Chilean Bar Association.
Mr. Ugarte has been recognized as a Leading Lawyer in Labour Law and Litigation by Chambers and Partners and Legal 500.
Spanish and English.