BASICS 15 AND 16:
Hence the Constitutional Court over its caselaw has established that such restorative effects (readmission employment) resulting from arbitrary dismissal or breach of certain fundamental rights enshrined in the Constitution or treaties relating to human rights, are generated in the following three cases:
a) Discharge no
this mode appears under with the provisions of Article 29 of Legislative Decree No. 728 and No. due to the need to protect, among other rights, such as those provided in subsection 2) of article 2, paragraph 1) of Article 26 ° and clause 1) of Article 28 of the Constitution.
dismissal occurs the so-called invalid where:
the worker is dismissed simply as a member of a union or participation in union activities.
the worker is dismissed simply as a representative or candidate of the workers (or for having acted in that capacity)
the worker is dismissed for reasons discrimination arising from gender, race,
religion, political choice, and so on.
the worker is dismissed for her pregnancy (if that occurs at any time during gestation or within 90 days after birth).
the employee is dismissed on grounds of being a carrier of AIDS (See Law No. 26,626).
the employee is dismissed on grounds of disability (See Law 27 050).
b) Dismissal uncaused
appears this mode in accordance with the provisions of the Constitutional Court dated July 11, 2002 (Case Telefónica, file No. 1124-2002-AA/TC). This purpose of safeguarding the full application of Article 22 of the Constitution and other related fields.
Occurs called groundless dismissal when:
the worker is dismissed, either verbally or through written communication without express cause whatsoever arising from the conduct or work to justify it.
c) Dismissal fraudulent
appears this form of implicit accordance with the Constitutional Court ruling handed down in the No. Exp 0628-2001-AA/TC, dated July 10, 2002. In that case it tried to present a case of voluntary resignation when in fact it was not. In this case, the Court considered that "The labor law has not ceased to be Tuitiva as they appear from the requirements contained in Articles 22 and following of the Constitution, due to the lack of balance between the parties, which characterizes contracts governing the civil law. As far as its constitutional guidelines, as part of the range of constitutional rights, are not merely literal or static, but effective and appropriate to circumstances in which it clearly sees the abuse of rights in the functional and economic subordination ...". (No Fun Jur. 6). These restorative effects
obey the injunction order the full effect, inter alia, Articles 22 °, 103 and subparagraph 3) of Article 139 of the Constitution.
dismissal occurs the so-called fraudulent, when:
the worker is dismissed with evil spirits and sponsored by deception, therefore, contrary to truth and righteousness of labor relations, even if it complies with imputation of a causal and procedural fees, as when the employee is alleged facts known to exist, or false or imagined also be given a lack not sanctioned by law, violating the principle of authenticity, as noted in the latter case, the jurisprudence of this Court (Exp. No. 415-987-AA/TC, 555-99-AA/TC and 150-2000-AA/TC), or the extinction of the employment relationship will defect (Exp. No. 628-2001-AA/TC) or by "making tests. "
In these cases, the absence of really just cause for dismissal or, at least on facts whose significance or gravity appropriate to elucidate the judge or because the facts do not constitute just cause under the law, the situation is comparable to invoke dismissal without cause, reason why this act becomes damaging the constitutional right to work.
16. In virtue of the foregoing, the Constitutional Court considers that adequate protection against arbitrary dismissal under Article 27 of the Constitution offers a choice restorative dually (reinstatement on the job) or damages (compensation for damage), as applicable.
This orientation of the Constitutional Court jurisprudence on labor does not lead to absolute job security, but raises the strengthening of the levels of protection for workers' rights against unfair business practices residual respect for the power to unilaterally terminate an employment relationship.
a) Discharge no
this mode appears under with the provisions of Article 29 of Legislative Decree No. 728 and No. due to the need to protect, among other rights, such as those provided in subsection 2) of article 2, paragraph 1) of Article 26 ° and clause 1) of Article 28 of the Constitution.
dismissal occurs the so-called invalid where:
the worker is dismissed simply as a member of a union or participation in union activities.
the worker is dismissed simply as a representative or candidate of the workers (or for having acted in that capacity)
the worker is dismissed for reasons discrimination arising from gender, race,
religion, political choice, and so on.
the worker is dismissed for her pregnancy (if that occurs at any time during gestation or within 90 days after birth).
the employee is dismissed on grounds of being a carrier of AIDS (See Law No. 26,626).
the employee is dismissed on grounds of disability (See Law 27 050).
b) Dismissal uncaused
appears this mode in accordance with the provisions of the Constitutional Court dated July 11, 2002 (Case Telefónica, file No. 1124-2002-AA/TC). This purpose of safeguarding the full application of Article 22 of the Constitution and other related fields.
Occurs called groundless dismissal when:
the worker is dismissed, either verbally or through written communication without express cause whatsoever arising from the conduct or work to justify it.
c) Dismissal fraudulent
appears this form of implicit accordance with the Constitutional Court ruling handed down in the No. Exp 0628-2001-AA/TC, dated July 10, 2002. In that case it tried to present a case of voluntary resignation when in fact it was not. In this case, the Court considered that "The labor law has not ceased to be Tuitiva as they appear from the requirements contained in Articles 22 and following of the Constitution, due to the lack of balance between the parties, which characterizes contracts governing the civil law. As far as its constitutional guidelines, as part of the range of constitutional rights, are not merely literal or static, but effective and appropriate to circumstances in which it clearly sees the abuse of rights in the functional and economic subordination ...". (No Fun Jur. 6). These restorative effects
obey the injunction order the full effect, inter alia, Articles 22 °, 103 and subparagraph 3) of Article 139 of the Constitution.
dismissal occurs the so-called fraudulent, when:
the worker is dismissed with evil spirits and sponsored by deception, therefore, contrary to truth and righteousness of labor relations, even if it complies with imputation of a causal and procedural fees, as when the employee is alleged facts known to exist, or false or imagined also be given a lack not sanctioned by law, violating the principle of authenticity, as noted in the latter case, the jurisprudence of this Court (Exp. No. 415-987-AA/TC, 555-99-AA/TC and 150-2000-AA/TC), or the extinction of the employment relationship will defect (Exp. No. 628-2001-AA/TC) or by "making tests. "
In these cases, the absence of really just cause for dismissal or, at least on facts whose significance or gravity appropriate to elucidate the judge or because the facts do not constitute just cause under the law, the situation is comparable to invoke dismissal without cause, reason why this act becomes damaging the constitutional right to work.
16. In virtue of the foregoing, the Constitutional Court considers that adequate protection against arbitrary dismissal under Article 27 of the Constitution offers a choice restorative dually (reinstatement on the job) or damages (compensation for damage), as applicable.
This orientation of the Constitutional Court jurisprudence on labor does not lead to absolute job security, but raises the strengthening of the levels of protection for workers' rights against unfair business practices residual respect for the power to unilaterally terminate an employment relationship.
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