responsibilities. 21 Thus, the Court analyzed the concept of occupational demotion,
although it did not specify its scope and content, within the context of Article 23 of the
Convention. Despite the foregoing, and without further explanation, the Court resumes
its analysis of the alleged occupational demotion in relation to Article 26 ACHR, taking
into account two distinct elements.
7.
Indeed, the Court found that the violation of the right to work was proven when
it considered that, “[…] the reassignment of duties experienced by Sandra Pavez
Pavez undermined her teaching vocation and constituted a form of demotion in
her job. The fact that her employment contract did not specify that she was a Catholic
religion teacher, that it envisaged the possibility that her duties could be reassigned,
and that she could have continued teaching classes of other religions if she had been
granted certificates of suitability from religious communities of other faiths, does not
change the conclusion that the new duties assigned to her were the consequence
of a different treatment based on her sexual orientation and not on objective
grounds of the requirements of the service” 22 (emphasis added). This assertion is
imprecise and lacks any legal basis, as I will explain below.
8.
From the conclusions set forth in paragraphs 138 to 140, it seems to be
understood that the change in working conditions to the detriment of Ms. Pavez relates
not only to a reduction in remuneration, in the stability offered by the contract or in the
rank of her position, but also to the fact that she could no longer carry out the work that
was her vocation, and to changes in her position based on discriminatory criteria. In
order to reach this conclusion, the judgment does not provide a solid basis in light of the
inter-American corpus iuris; it blurs the content of Article 23 of the Convention and
reiterates the analysis of paragraph 1 of the merits of the judgment.
9.
In the first place, with regard to a person’s vocation as an area protected by the
right to work, the Court’s failure to substantiate its position is evident. The judgment
does not explain what this concept refers to, whether it is associated with a person’s
profession in general, or with the scope of a specific contract; nor does it indicate the
scope of this obligation for the State, or what its limits are in relation to the contract or
the need for the service. Even more serious, the Court does not explain which provisions
directly or indirectly recognize vocation as part of the right to work in the field of
international human rights law. Furthermore, the Court does not specify on the basis of
which criteria of interpretation it is possible to conclude that Article 26 - in relation to
Articles 45(b) and (c), 46 and 34(g) of the OAS Charter, 23 and the precedents of the
cases of Lagos del Campo v. Peru, Dismissed Employees of PetroPerú et al. v. Peru, San
Miguel Sosa et al. v. Venezuela, Spoltore v. Argentina and Workers of the Fireworks
Factory in Santo Antônio de Jesus and their Families v. Brazil - protects vocation as part
of the right to work. On the contrary, in order to provide a legal basis for the violation
of Article 26, the Court refers to paragraphs 88 to 90 of the decision, in which it only
mentions the prohibition of discrimination in labor matters, leaving its position without
legal support.
10.
Secondly, the Court blurs the content of Article 23 of the Convention. As I
explained earlier, the judgment mentioned the notion of occupational demotion both
when referring to the right of access to public service and to the right to work; however,
Case of Pavez Pavez v. Chile. Merits, reparations and costs. Judgment of February 4,
2022. para. 138.
21
Case of Pavez Pavez v. Chile. Merits, reparations and costs. Judgment of February 4,
2022. para. 140.
22
23
It should be recalled that the State of Chile did not ratify the Protocol of San Salvador.
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