Fecha de recepción: 17/03/2022 / Fecha de revisión: 03/05/2023 / Fecha de aceptación 17/05/2023

Introduction

Guatemala is a multi-lingual, multi-ethnic, multi-cultural, sovereign and democratic country with its three branches of government: Executive Body, Legislative Body and Judicial Body, its legal basis is the Political Constitution of the Republic of Guatemala, which establishes the rights and norms of good behavior of all citizens for the harmony, peace and security of Guatemalan society; for a better understanding of what has been the undermining of the right to work, exploitation and discrimination of the worker in different areas of the Guatemalan country, it can be presented thanks to the study and analysis made, from an analytical, inductive and deductive way, in which it was observed in various documents that in one way or another, lead to know, it is very clear that for man after his work as natural law, divine law, general law and norm, it corresponds to him to rest and be treated as a human being in his physical and psychological integrity, it was not so in the development of the history of work, since after being a nomadic man, he congregated in small communities and with the discovery of new work tools, the laws, the State and the Social Stratification arose, this brought with it the renting or leasing of services of men who were captured in wars and then sold as slaves to their masters to be exploited and cruelly tortured with the inhumanity and brutality of how the masters acted with the slaves, when analyzing this type of cruel treatment that has been occurring for centuries since the ancient, middle and modern ages, the different periods, the first and second world war, the industrial revolution......, the internal armed conflict in Guatemala, has been called undermining the right to work, so the legislature has created and reformed, laws and decrees that ensure the rights of workers and that they are not undermined in their work activities, as established in Article 4 of the CPR.G and recitals of the Labor Code, what has affected for centuries is the ignorance of these rights in rural areas and western Guatemala was notorious the type of slavery and inhumane treatment for workers and housewives who were fired unjustifiably after also being subjected to cruel treatment, which is why as it happened in the ancient, middle ages, modern ....this is why many employees have had their rights violated, due to the fear of suing their masters, the lack of knowledge of their rights in national and international law, the workers do not know what to do and which institutions to turn to in order to sue their employer in a timely manner in case of unjustified dismissal, also in many cases the due process is violated, it is important to mention that there is a diversity of laws and treaties accepted and ratified by Guatemala in force in labor law matters, among those that have been analyzed and applied in this investigation are the Political Constitution of the Republic of Guatemala, art. 4, 12, 44, 51, 46, 101 to 117, 175-177, 180; Labor Code from all its recitals and chapters, for example: working hours, overtime, vacations, labor benefits, indemnities that the law establishes among others, which are often not fulfilled by the employer in the labor relationship; Art. 76, Art.80.4, paragraph a, Regulation of the Civil Service Law; Convention on the Rights of the Child, San José Pact, Universal Declaration of Human Rights (UDHR), Vienna Convention, ILO, the sources of labor law and the principles of labor law, ..; among the institutions in Guatemala that watch over the rights of the workers, reference is made to the Ministry of Labor, which is the institution in charge of verifying, through the General Labor Inspection, all employers that have been denounced for abuses, inhuman treatment, labor harassment, analyzing and measuring the amount of compensation in case of unjustified dismissal, but this must be claimed by the worker before the expiration of thirty days so that his right to indemnification does not expire after the time established by law, likewise the employee may claim his benefits not received, so that if in any way the employer refuses to pay the indemnification and labor benefits, the worker may appear with a legal representative before a labor court that has jurisdiction to hear the case according to the jurisdiction of the labor conflict raised, therefore, the Judiciary creates Labor and Social Security Courts that cover jurisdictionally in Guatemala, as well as in the metropolitan area there is a Labor Justice Center, which has Labor Mediation Centers with professionals who ensure compliance with mutual rights and that none of the parties are affected in their rights, so they come to mediate between the parties who wish to reach an agreement to no longer continue with the process of the conflict, this contributes in a more agile way to peace and harmony between the parties, in order to have a better understanding in the present investigation current cases were analyzed as for example the case of the demand of ordinary work of reinstatement for unjustified dismissal in which the director of an official school of the primary level for non-pedagogical attitudes and abuse of his functions to seduce girls of the primary level, having caused physical and psychological damage in the students, was sued by the parents of the minors, and as a result of the lawsuit, the principal was fired and dismissed from his position, but the MINEDUC institution did not certify the act immediately as established in Article 80.4 of the Regulations of the Civil Service Law, but did not do so until one month had passed, this is where due process was violated according to Article 12 of the Political Constitution of Guatemala, in this case it was a little confusing in the analysis, in this case it was a little confusing in the analysis, because when talking about the tutelary nature of the laws in the analysis, not only the tutelary nature of the worker was considered, but also the tutelary nature of the national and international laws that protect the children who are involved in the educational environment where the director worked and who cannot be unprotected from the principle of tutelary nature, so it is a case of deep analysis, in which legal logic and psychology must be applied, for which a possible solution is the reinstatement of the teacher for having violated the due process not by the labor court, but by the state entity such as the Ministry of Education that made the mistake since it did not issue a certified act immediately as established in article 80 numeral 4, paragraph a) of the regulation of the Civil Service Law, the act was subscribed on October 5, it was certified until November 5, that is to say 31 days later, taking into account that the month of October has 31 days and it was delivered to HR of MINEDUC until November 10, mainly due to the magnitude of the case it should have been certified immediately, in this way when analyzing the case, it is possible to reinstate but in an administrative area not in the position of director, in order not to violate the safety of minors and protect the guardianship of children and at the same time comply with the guardianship of the worker, Art. 1 to 5, CPRG; Art. 1 to 4 of the Inter-American Convention to Prevent, Punish and Eradicate Violence against Women; Art. 1 to 3 of the Declaration on the Elimination of Violence against Women; Art. 1 to 13 of the Law against Femicide and other forms of violence against women; Art. 1 to 7 of the Law to prevent, punish and eradicate domestic violence; art. 1 to 10 of the management regulation for the competent courts and tribunals in crimes of femicide and other forms of violence against women; art. 1 to 6, 43, 44, 150 to 152, and 488 of the Criminal Procedural Code, 414 of the Criminal Code, 141 to 142 BIS and 143 of the Law of the Judiciary. As ordered by the Eleventh Social Security Court: art. 76 paragraphs 1, 8, 10 and 12 of the Civil Service Law.

In the analysis of the second case Incident of declaration of post mortem beneficiaries of former state workers. In which after the death of the beneficiary who was a worker of the Public Ministry, but had as direct beneficiary the one who had been his wife but a month before his death she got divorced, however he had 4 minor children with different partners, children who were dependent of the deceased and when the ex-wife took part of the post mortem benefit the minor children were left helpless, so the honorable judge in first instance, having the documentation that was required to all the parties involved, according to the evidence presented, the honorable judge in the first instance resolved to resolve with place the object raised in favor of the minors in a fair and proportionate manner in an equal percentage for each child of which the mothers in exercise of the guardianship can collect from the defendant institution, this declaration was based on article 85 of the labor code, article 3 of the declaration of the rights of the child and the convention on human rights; since it is established that the ex-wife of the deceased could no longer be named as beneficiary because she did not comply with the provisions of article 85 of the Labor Code, which establishes that the beneficiaries are the dependent relatives of the direct beneficiary, it is notorious that by legal logic, the CPRG, in the analysis developed, it was observed that the secretary of the court in the second instance presented certification of the closing of the process notifying that the ex-wife was the beneficiary when there was still an appeal pending to be resolved, it is here where the violation of the due process is observed, which was later resolved in favor of the minors in 25% for each one as established by law, preferential protection for minors.

As established in Article 3 of the Convention on the Rights of the Child: “in all actions concerning children taken by public or private institutions or courts , the best interests of the child shall be paramount”, "In the present case the previous article is very clear and concise, to give place to the incident and the honorable judge reasoned from the beginning legally based on his experience and knowledge of the laws in force, therefore, he did not act in bad faith, but rather based on legal labor and guardianship criteria, for which the petitions and certifications must be analyzed, comparing them with the laws in force, mainly the guardianship of children, which gives preferential protection to them, since they are the object of the lawsuit; therefore, the minors cannot be left unprotected of their right to food, because although the deceased worker left in a form as beneficiary the one who at that time was his wife, later there was a divorce with the beneficiary, being this proven in a certified certificate of divorce; however, she procreated 2 children with 2 different persons, which are dependent of the deceased, so in law, his 4 children are the only beneficiaries in proportional parts, so this claim, in spite of having raised and exhausted all the resources in law, was not granted to the ex-wife, because the law is fair and equitable.

The philosopher Plato stated that the word justice is "to do each one his own" which means that each person must do and give what is his or her due based on his or her labor rights. If equity is analyzed according to the AER, it is a quality which is practiced by giving to each one what he/she deserves. that is to say, neither benefiting nor harming it by second or third parties, so that the judge in giving a resolution of a case acts with impartiality, giving in his decision to each party to the labor conflict what corresponds to him by law.

This report is divided into research methods such as: the design that was developed with the practice in the Labor Court of Social Security and Economic Coercive, where valuable and important information was obtained for the study of the cases authorized by said court the practicewas developed with the observation of the current situation that affects the Guatemalan society in relation to labor conflicts between employer and worker, the analysis of books, laws and international treaties in force, accepted and ratified by Guatemala, in which the obligations and labor rights of all workers are found, a labor conflict begins with a lawsuit before a jurisdictional court for the violation of labor rights. The participants for the research were a group of experienced labor experts who provided concrete and current information for the feasibility of this project. The appropriate instrument used for the collection of data and preparation of this report is to have the authorization of the institution of the Labor Court, where the practice was carried out in which we had the opportunity to carefully analyze some cases of labor conflict and this led to the study of other sources such as primary sources and secondary sources, so that regardless of the case, the principle of tutelage is applied, all activities have been focused on AD HOC. The Labor and Social Security Courts, the Labor Justice Center, the Ministry of Labor and Social Security and the General Labor Inspectorate are institutions in charge of attending to any complaint or denunciation presented by a worker whose rights have been violated and to ensure justice and that the principle of tutelary protection applied to labor law is favored. Likewise, in the data analysis, having the field or documentary information, according to the context where the research was carried out, the data were subjected to a deep analysis, where the selected information was discerned, interpreted, discriminated, discussed and simplified to detail which is suitable and gives the guideline of being suitable for being a useful part in the document prepared, that based on the objectives is relevant in the sense that by being simple and understandable, clear and precise conclusions are obtained to propose fair solutions with the principle of protection applied in the right to work, international treaties and human rights allow to present viable and fair solutions to labor conflicts, therefore it is appropriate to have well defined the laws that provide legal protection in labor matters. Similarly, to obtain all the information, Microsoft Word, Microsoft Excel and Microsoft Power Point programs are used to make the presentations of the entire research and documentary elaboration process. The results of this research are the knowledge of the background of labor law with the current state and although in the past it was a cruel form of slavery; at the present time, it is pertinent that humanity knows, analyzes and interprets their rights that protect them and thus persuade them to prevent history from repeating itself, this is another of the results that workers have knowledge of their labor rights and go to the appropriate institutions to know the problems of labor conflict, another important point in the results is the effectiveness of the theoretical content such as the legal basis in labor law that is presented, to avoid violating the labor rights of workers, the objective of publishing this analysis is to obtain as a result that many people know their rights and obligations based on law and that an unjustified dismissal can be sued before 30 days to claim compensation. In the present study the discussion was carried out on the national legal basis in force and comparative law because there are cases in which international law must be taken as a suitable point in the resolution as is the tutelary principle and this must be compared from the point of view with the legal logic in a concatenated way the principles of labor law it is for this reason that the conclusion is reached that it is not possible to separate the conventions accepted and ratified by Guatemala when giving a resolution in a labor conflict trial since the tutelary principle is a right that gives preferential legal protection to the workers and none of them should or can be undermined. According to the antecedents of labor law, workers were undermined, but laws have been created in favor of workers to protect their rights, as well as different institutions have been created to provide assistance by guiding them on what their rights are and how they can be claimed on the principle of protection, thus promoting harmony and peace for society; the continuity of this report is achieved thanks to the feasibility of the information obtained not only from research but also from field information.

Method

In order to achieve the objective of this study we started from the analytical, inductive-deductive method, since from the beginning to be able to analyze the cases we had to go step by step, that is to say, in theory we broke down the labor conflict dividing each part of it, analyzing the request of each one, based on which law they make the request, comparing the other laws in force and the international treaties accepted and ratified by Guatemala that are a fundamental part to reach fair conclusions, of course, it is worth mentioning here that in order to reach a conclusion of the problem, logic and psychology were used, for example, when a person divorces his or her partner and does not leave any benefit for him or her in the marital separation, but rather states that he or she does not claim anything because he or she is independent, therefore, in the decision of the case, mainly based on constitutional and human rights law, children who are dependents of a deceased person who has a post mortem benefit cannot be unprotected, because their rights are undermined and violated, and the guardianship of minors, which is the duty of the State to provide legal protection for children, is not complied with. Regarding due process, Article 12 of the Political Constitution of the Republic of Guatemala, in the two cases analyzed, if in one case the secretary of the court certified that there was no longer any notification or appeal pending when there was a pending appeal and no final resolution had been issued, in the other case, when the director's actions resulted in a justified dismissal and the administrative record that was signed for the offense committed, was not certified immediately to inform human resources so that after receiving the certification of the minutes, the charges were formulated and a hearing was held for three days in which the director could present his justifications for the actions and to defend himself could provide all the appropriate evidence for his defense, as established by the Civil Service Law in its regulation Art. 80 numeral 4. 80 numeral 4, but by not complying as established by law, by not certifying the minutes and informing immediately and in the other case it was certified that there was no appeal or resolution pending, therefore, in both cases it is concluded that due process was violated. For a better analysis, the actions and elements used to develop the research analysis are detailed below.

Design

The present investigation was carried out in a Labor Court of Social Security and Economic Coercive, the labor courts have the function of receiving complaints of labor conflict to hear in the first instance and resolve in a fair and equitable manner, the claims attached to Human Rights and the principle of protection that gives preferential legal protection to all workers that their rights are not violated; The actions carried out have been developed, from the beginning, through the observation of the current situation that affects the Guatemalan society in relation to labor conflicts between employer and worker, since in this way it was possible to carry out the study of cases, documents, laws, URL addresses, books, videos..., for the drafting of the report, some of the stages of the Guatemalan Federation of Radio Schools (FGER) were taken as a reference (Méndez, 2019, p. 13); mainly the observation stage, allowed to select the problem, "The undermining of the right to work" so it was necessary to investigate a little history of labor law, how it has evolved, analyze the different laws and decrees in relation to the right to work, as the methodological structure used basically includes documentary analysis, since from the beginning we took into account books, laws and international treaties accepted and ratified by Guatemala, which offer a lot of information in relation to labor obligations and rights, which every employee has and no employer can undermine the dignity or rights of its employees.

To initiate a labor dispute by the affected worker, he/she must file a claim before the competent court, provide the necessary evidence and the evidence required by the court to open the case, appear at all hearings to which he/she is summoned, if not resolved in the first instance, he/she must appeal in the second instance the petition based on his/her rights, even if it is not resolved favorably, he/she can take the case to the Constitutional Court or the Inter-American Court of Human Rights for it to analyze, study and resolve, the remedies are: labor conflict lawsuit, appeal, appeal for protection, special appeal.

Participants

The population that was a fundamental part in providing their knowledge to carry out this research are the professionals who are part of the judicial career in the Labor and Social Security and Economic Coercive Court, since in one way or another they contributed much of their experience, so that the research and analysis of cases of labor conflict were viable for the development of this research and that it is presented for the population and users who wish to acquire knowledge in legal labor matters.

Instrument

In the development of the investigation to elaborate the report of the analysis of cases of labor conflict was carried out with the collection of data for which the appropriate and opportune techniques were used, for example, in this opportunity primary sources were applied, through which books, laws, internet research were analyzed; as well as the secondary sources in which the information obtained from library sources of SEGEPLAN, library of the Constitutional Court, legal dictionary, newspaper clippings, monographs, analysis of reports and studies of cases of labor conflict.. The best instrument of the present investigation is to have the authorization of the institution where the practice was carried out, in which we had the opportunity to carefully analyze some cases of labor conflict and this led to the study of other sources for a better and wide understanding of how to apply the principle of tutelary protection regardless of the case, whenever resolutions are presented based on legal logic, psychology, and experience in order not to affect the legal system, experience in order not to affect the principles and labor rights, treaties and conventions accepted and ratified by Guatemala, the declaration of human rights, since all activities have been focused on AD HOC, for the effectiveness and efficiency of the work done, so it is important to mention institutions that may at some point support those who are affected in their labor rights these institutions are: the Labor, Social Security and Economic Coercive Courts, the Labor Justice Center, the Constitutional Court, the Ministry of Labor and Social Security and the General Labor Inspectorate, which is in charge of supervising any denunciation or complaint on the part of an employee affected in his labor rights, with this it is clear that for the efficiency of the present investigation only the information will be taken as a reference to have clear ideas of the reality that affects society and deeply get to propose fair solutions based on current law, which provides timely rights according to the case and that is conducive to the principle of protection applied in the right to work.

Data analysis

During the process of data analysis, different activities are developed in which mainly in the research, from the moment that the field or documentary information is available, according to the environment in which it is carried out, such data are subjected to a deep analysis, where they are discerned, interpreted, discriminated and then there is a discussion in which the selected information is simplified to detail which is the most suitable, the information selected is simplified to detail which is the most appropriate, timely and gives the guideline to be suitable for being a useful part in the document prepared so that based on the objectives it is relevant in the sense that by being simple and understandable, clear and precise conclusions are obtained to propose fair solutions and can even be reached through the analysis of cases to prescribe whether it is possible to enter new proposals for the eradication of the impairment of the right to work and make fair decisions with the principle of protection applied in the right to work, international treaties and human rights, which are a fundamental part of any justice process so that justice is prompt and fulfilled without discrepancies, without violating the due process in any of the phases in the development of the same, since there are different resources to be filed by the affected worker, it is always necessary to have evidence to support what the plaintiff who initiated the process of the labor conflict, because in many occasions the worker pretends to be granted the rights claimed when he does not present evidence of what happened, there are no documents to validate the appeal filed, not even witnesses, all of which fades the probability of winning his claim, because judges also, according to their experience, logic and psychology, analyze prudently before making a decision and give the resolution of the case with justice, equity, equality, speed, efficiency, effectiveness and respect for human rights.

To achieve the understanding of the case study of the labor conflict and with the analysis what you want to convey is a viable solution for such conflict, therefore it is appropriate to have well defined the laws that provide legal protection in labor matters, which are these, present key articles in relation to the conflict and present techniques to show where the error arose or if there was not, to reach a reliable probability of what happened and is happening at the moment and what can be done for the common good and harmony of society to present viable and balanced solutions with labor justice to the problem, in the same way to obtain all the information, computer programs are used for the development of the analysis, among these programs we can mention the most used Microsoft Word that allows through its task bar to write the document, add the different options in the documentary elaboration, Microsoft Excel allows to elaborate the chronogram of activities, diagrams, graphs and statistics, in the advance of the final document and Microsoft Power Point to make the presentations, of the whole process of investigation and documentary elaboration.

The results obtained in the present investigation are mainly the knowledge of the antecedents of labor up to the present state of the problem, because although in past times the undermining of the right to work was a cruel form of slavery; at present, it is pertinent that humanity knows, analyzes and interprets its rights that assist and protect it, so that they can claim them in the opportune time in law; in this way, with the present investigation, we can persuade them to avoid that history repeats itself and that each person whose labor rights are violated can go to the appropriate institutions to know the problems of labor conflict so that they can provide them with advice according to the type of labor conflict, another important point in the results is the effectiveness of the theoretical content such as the legal basis in labor law that is presented, in order to avoid violating the labor rights of workers, because in many organizations they do not see beyond a legal problem but take advantage of all those who, due to lack of knowledge, let the time expire and when they think of claiming their rights they can no longer do it because for each judicial process there are specific times, therefore, this analysis does not only intend to study cases of labor conflicts, but rather, with the detailed information, it awakens the interest of the people in knowing and investigating their rights, thus achieving the most important objective, which is to enforce the principle of protection of human rights in order to achieve social harmony, which has been lost due to inequality in labor rights, we will not go too far if we take as a clear example the labor crisis caused by the pandemic of COVID-19 in Guatemala, many employees were dismissed unjustifiably stating the employer that it was because of staff cuts but many were not paid their severance pay or labor benefits of which they did not denounce because they did not know how much time the law establishes to claim their compensation for an unjustified dismissal, the clear result of publishing this study is that many people will know that the time in law for claiming severance pay for an unjustified dismissal is 30 days after the dismissal, nowadays there is teleworking for people to perform activities from home without having to be in a physical space of the organization, so what is intended is mainly that the guardianship is the principle of any organization and do not forget that it is a right that gives preferential legal protection and this is also conducive to children who have inalienable rights both nationally and internationally.

The possible innovations or results that can be produced with the case study in the development of this document is that groups of students of the University of San Carlos de Guatemala, students of the labor law course or legal and social sciences, may study and know the schemes of the labor tutelage according to studies done so that these awaken the interest to make studies to make proposals for improvements to labor laws for the benefit of the worker or that didactic manuals of labor law in Guatemala are elaborated to inform future students and the general public, it is through this research that the most important result is achieved, which is justice correctly applied for both parties of the labor conflict and with it, justice, equality, peace, harmony, for the Guatemalan society in its different cultures.

Discussion and conclusions

Within the present study the discussion between the national legal basis in force and the comparative law that to understand with the legal logic in a concatenated way the principles of labor law is why when applying justice the tutelary principle must be taken into account, it is a right that gives preferential legal protection to the workers and none of them should or can be undermined, the responsible institutions in Guatemala are those that are represented by legal professionals.

The background of labor law and how it has evolved in favor of workers was presented.

There are a variety of institutions that watch over and help workers to ensure that their labor rights are respected and complied with.

Current national labor legislation, as well as treaties and agreements accepted and signed by Guatemala provide preferential legal protection for workers.

The knowledge and interest of the workers about their labor rights and that after knowing them, it is pertinent to request them in a timely manner and in a legal and suitable way so that they can be enforced, achieving stability and social justice.

It generates a culture of dignified work, for the harmony and peace of society with the practice and application of the principle of protection for workers.

The limitations that may arise in the present study is that this document for some reason may not be physically and digitally reproduced at the national level, therefore, it may not be available in all libraries for study by other researchers or people who like to learn about topics of personal interest. The lines of continuity of this document is the viability of the information through the follow-up of the background research, reinforcing them with other sources that provide better concepts and the principles of labor law, specifically the protection of the laws to provide preferential legal protection of labor law, that reforms to the current laws arise to prevent them from being distorted or misinterpreted, focusing on the common good and peace in society, with justice, equity and equality.

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