understood that, in this case, Sandra Pavez Pavez was not prevented from obtaining a promotion, 76
nor did she suffer a measure that implied dismissal or suspension from her teaching duties, nor has
she been legally prevented from exercising her professional functions in accordance with her
professional teaching qualifications, neither in the public nor the private sector. 77 The State recalled
that, in 2007, when the certificate of suitability was revoked, the contract remained in force, and the
only practical consequence of the revocation was the reassignment of Ms. Pavez’s duties from teaching
the Catholic religion to working as a general inspector. 78 The State argued that her access to and
tenure in public service were not affected, and there was not even a modification of duties not included
in the employment contract. Consequently, the actions of the educational corporation in reassigning
the alleged victim’s functions are not within the scope of protection of Article 23(1)(c); thus, it is not
possible to conclude that this right has been violated.
49.
Regarding Article 26 of the Convention, it indicated that this article is not applicable to the
present case since the right to work is a guarantee of the inter-American system that is only
enforceable in those States that have ratified the Protocol of San Salvador and that, to date, Chile has
not ratified this instrument. Therefore, the rights recognized therein, including the right to work, do
not entail obligations for the Chilean State. Furthermore, it argued that none of the components of
the right to work recognized by this Court in its case law (free choice or acceptance of employment,
job security, and equitable and satisfactory working conditions) have been affected, since Ms. Pavez
had continuity in her job and was legally authorized to exercise the profession of educator, in
accordance with her qualifications; 79 the claim of a vocation to specifically teach the Catholic religion
does not constitute an obligation for the State, and the reassignment of her duties in no way
constituted a real, objective and unlawful demotion.
50.
In addition, the State argued that, even if it were considered that the reassignment of duties
caused some type of impact on Sandra Pavez Pavez’s right to work, it will be demonstrated below that
this alleged impact would be fully proportional in compliance with the strict proportionality test. On
this point, the State argued that the specific case requires a weighing of rights that takes into account
all the interests involved (the rights of the teacher Sandra Pavez and, on the other hand, freedom of
religion of the Catholic community and the children and parents who are part of it). It pointed out that
the withdrawal of the certificate of suitability: a) pursued a legitimate and compelling purpose, namely
the realization of the right to religious freedom enshrined in Article 12 of the American Convention;
b) it was suitable to fulfill that purpose; 80 c) it was necessary since there were no alternatives that
would have allowed the right to freedom of religion to be realized to the same degree, affecting to a
lesser extent the interests of Ms. Pavez Pavez, and d) it was strictly proportional because the impact
76
It emphasized that, in fact, she was promoted to a management position of higher rank which, like all promotions,
entails greater responsibilities, hierarchy and remuneration.
77
Her lack of a certificate of suitability to teach Catholic religious education did not disqualify her from classroom
teaching, technical-pedagogical support or supervision of teachers. It also pointed out that Sandra Pavez Pavez could teach any
other subject of the basic education curriculum, including religious education on behalf of any other religious community that
wished to certify her for this purpose.
It added that this consequence, which was decided by the employer, was accepted by Ms. Pavez Pavez, and that there
is no record in the file of any claim by her against the State or her employer for the reassignment of duties. It further argued
that it is clear from Sandra Pavez Pavez's employment contract that the purpose of the contract was not to hire a Catholic
religion teacher but a teacher to join the staff of the Cardinal Samoré High School, and that it is a generic teaching position in
the staff. It recalled that according to Chilean law and to Ms. Pavez's own employment contract, the employer has the power
to modify the tasks performed by the employee, unilaterally, provided that these do not constitute deterioration in her working
conditions, and that even if Ms. Pavez Pavez were to be considered as a public servant, this power of ius variandi also applies
to public employment.
78
The State recalled that the position of inspector general is, per se, a teaching position, that Ms. Pavez’s appointment
as inspector general required her to be a teacher, a professional in education, and that the loss of the certificate of suitability
did not imply a loss of employment or of her status as a teacher. It added that Chilean law does not contemplate a legal
disqualification that would prevent Ms. Pavez Pavez from working as an educator in any of the teaching functions described in
the Teachers' Statute. Furthermore, she continued to be entitled to the benefits and prerogatives of teachers in Chile.
79
80
It considered that removing from denominational religion classes those teachers who no longer enjoy the confidence
of their religious authorities is appropriate to avoid imposing denominational religion teachers.
16