La Cámara de Apelaciones en lo CAyT de la C.A.B.A. confirmó la medida cautelar y ordenó el traslado de la empleada en un caso de mobbing

SÍNTESIS.- En el caso, corresponde confirmar la sentencia de grado, en cuanto hizo lugar a la medida cautelar solicitada por la parte actora, y ordenó al Gobierno de la Ciudad de Buenos Aires que se dispusiese el traslado de la actora a otro sector del Ministerio de Educación, sin modificación de su salario y categoría.
La actora denunció una situación de hostigamiento o acoso laboral, y la administración dispuso la instrucción de un sumario, pero sin disponerse el apartamiento provisorio del superior.
Dispuesta la medida cautelar por el “a quo”, la demandada recurrente alegó afectación de las facultades propias de la Administración.
Ahora bien, en la medida en que el traslado se dispone de modo provisorio y mientras se extienda el trámite del presente proceso, con la finalidad de no agravar, eventualmente, la situación que ha denunciado la actora y que la propia Administración estaría investigando, no se advierte de qué manera ello podría implicar una afectación de potestades excluyentes de esta última.

En efecto, más allá de la suerte de la denuncia que, en el ámbito del Código Contravencional habría deducido la actora, lo cierto es que la propia Administración decidió dar curso a actuaciones sumariales relacionadas con los hechos que aquí se tratan, pero sin considerar pertinente el traslado preventivo del superior denunciado por la demandante.
Así pues, se habría ordenado la instrucción de un sumario con motivo de la situación de hostigamiento o acoso alegada por la aquí actora pero sin que se hubiese dispuesto el apartamiento provisorio del superior; es decir, ambos, denunciante y denunciado seguirían compartiendo el ámbito que sería presupuesto del acoso que se invoca.
Además, y este dato aparece determinante como para confirmar la tutela otorgada, se consideró que la actora, quien habría gozado de licencia psiquiátrica, podía retomar su actividad laboral con la recomendación de que se instrumentasen los medios para que desarrollase tareas en otra área (conforme certificado médico).
Este conjunto de elementos conducen a considerar como suficientemente acreditados los recaudos de verosimilitud en el derecho y peligro en la demora, por lo que la decisión de trasladar a la actora, sin modificación de su salario y categoría, hasta tanto se dictase sentencia definitiva en autos, parece la que mejor se adecúa a la situación descripta.

Antonio, Mónica Fernanda c/ GCBA y otros, Cámara de Apelaciones Contencioso, Administrativo y Tributario, 13/07/17

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Fuente: Departamento de Biblioteca y Jurisprudencia del Consejo de la Magistratura de la Ciudad de Buenos Aires

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