EXP.
No. CALLAO
03052-2009-PA/TC
LARA YOLANDA GARAY
CONSTITUTIONAL COURT JUDGEMENT
In Lima, on the 14th day of July 2010, the Plenum of Constitutional Court, composed of Judges Mesía Ramírez, Gotelli Vergara, Calle Hayen, Eto Cruz, Alvarez Miranda and Urviola Hani, made the following statement
Appeal Case
constitutional tort brought by Mrs. Yolanda Lara Garay, against the decision dated December 1, 2008, issued by the First Civil Chamber of the Superior Court of Callao, which declares unlawful demand for cars.
BACKGROUND On January 29, 2007 Jacqueline Maria Acosta Ramos, Yolanda Lara Garay, Clara Rojas and Cecilia Tica Rosario del Carmen Carrión Zavala, the defense Sue asking that it rescind the dismissal letter dated January 5, 2007 and accordingly ordered that they be reinstated in their jobs, to have been groundless dismissal. They argue, they are workers of the Regional Government of Callao, which have been played, first as an Attorney II in the Management of Legal Counsel, the second as an Attorney II, Legal Management, the third and Administrative Technician II in the office Protected Areas Management and Environment of the Regional Management of Natural Resources and Environmental Management and the fourth as Secretary II in the Regional Public Prosecutor, who have come signing fixed-term contracts called service-specific, the same according to the Regional Executive Resolution N º 109-2006-Regional Government of Callao-PR dated June 1, 2006 provided for the adjust gradually contracts for specific services subject to form the condition of indefinite contracts, support staff, technical and professional levels, categories and places the box to the allocation of staff-CAP, who have served in the public entity, but subject to the labor private activity, so that the dismissal without cause violates the constitutional right to work.
The summoned answer the complaint, arguing that the lawsuit is without merit because there are specific procedural way, equally satisfactory for the protection of constitutional rights is considered vulnerable, since the applicants were former public servants of the Regional Government of Callao, whose contracts were terminated by Regional Executive Resolution N º 109-2006-Regional Government of Callao / PR declared invalid by Regional Executive Resolution N º 039-2006-Regional Government of Callao / PR., so they had reason to challenge such administrative acts are within their rights to resort to litigation administrative.
Fourth Civil Court of Callao, dated August 14, 2007, states founded demand whereas the work done by the applicants are permanent.
The superior authority, overturned on appeal and dismissed the application because it considered that the applicants consented to the breach of his employment relationship, having made the payment of their benefits.
On March 27, 2009, Mrs. Yolanda Lara Garay tort action brought against the decision issued by the Superior and issued to the appellant on the constitutional tort action
BASICS § 1. Delimitation of the dispute
The purpose of the application is to be declared unenforceable dismissal letter dated January 5 2007, consequently reinstate their jobs to the plaintiffs, having been the subject of groundless dismissal, however, having brought the constitutional tort action for only one of the co-plaintiffs, this is Mrs. Yolanda Lara Garay, this Court shall act only with respect to the appellant, since the co-plaintiffs Maria Acosta Ramos, abandoned the process and Rosario del Carmen Carrión Tica Cecilia Zavala and Clara Rojas, have consented to the resolution of grievance matters.
On the other hand, considering that the demand has been rejected by referring to judgments of the Constitutional Court regarding the collection of social benefits, this school should decide this issue, so this sentence will discuss: a) the protection as a protection against dismissal damaging to fundamental rights, b) if the payment of social benefits is a tacit agreement to terminate the employment relationship, an approach that has been applying this Court consistently held (STC AA7TC No. 532-2001, 3304-2007 AA / TC, AA 6198-2007 / 5381-2006 TC and AA / TC), noting that "demand can not be accepted, since, (...) the applicant has made the payment of social benefits and, therefore, it has been terminate the labor relationship he had with [the] defendant. "
§ 2. The fundamental human rights
human
3. Article 1 of the Constitution has established that "the defense of the human person and respect for their dignity are the supreme goal of society and the state", this concept a reality set in both subjective and objective protection of the rights fundamental to any arbitrariness on the part of any authority, official or person.
4. The concept of fundamental rights includes "both ethical budgets as the legal, meaning the moral significance of an idea that compromises human dignity, moral autonomy goals, and also the legal significance that makes rights basic standard material in order, being necessary tool for the individual in society develop their full potential. Fundamental rights expressed both basic morality as a basic legality "(Peces-Barba, Gregorio: Course of Fundamental Rights. General Theory. Madrid, Universidad Carlos III de Madrid. Government Gazette, 1999, p. 37).
Consequently, although the positive recognition of fundamental rights (commonly, in the Fundamental Law) is a prerequisite for their enforcement and limit the power of the state and individuals themselves, and so is its ethical and axiological connotations, while gross concretions positive-law principle of human dignity, pre-existing state order and projected him as the supreme goal (Article 1 of the Constitution).
5. That is why Chapter I of Title I of the State Constitution, entitled "Fundamental Rights of the Person", and recognize the top-right of human dignity and the budget laws of other fundamental rights (Article 1) listing many of them in Article 2, provides in Article 3 that this enumeration does not exclude the other rights recognized in the constitutional text (ie. the fundamental social rights economic and recognized in Chapter II and the policies contained in Chapter III), "or similar nature or based on human dignity, or to the principles of popular sovereignty, the democratic rule of law and republican form of government. "
6. Thus, we can say that is the Constitution which incorporates the constitutional order, not only to the rights expressly mentioned in the text, but all those who, by implication, arising from the same principles and values \u200b\u200bthat served historical base and dogmatic for the recognition of fundamental rights. Consequently, the catalog fundamental rights enshrined in the Constitution, is complemented by one made up of unnamed rights, whose recognition is borne by the judges and, in particular, as the supreme interpreter of the Constitution, for this school. This has been done, for example, among other cases, when it defined the scope of the right to truth (STC 2488-2002-HC/TC, Genaro Villegas Namuche case), the right to drinking water (6546-2006 STC-PA / TC, where Augusto César Zúñiga López), the right to free development of personality (STC 0007-2006-PI/TC case Merchants Association San Ramon and Figari), the right to the effectiveness of laws and administrative acts (STC 0168-2005-PC/TC, Maximiliano Villanueva Valverde case), the right to recognition and protection of legal persons (STC 02432-2007-PHC/TC case Apaza Chuquitarco Rolando), among others.
7. Moreover, it is necessary to note that, under the Fourth Final and Transitory Provision of the Constitution, fundamental rights recognized therein should be construed in accordance with human rights treaties ratified by Peru.
§ 3. The right to adequate protection against arbitrary dismissal.
8. Article 22 of the Constitution states that "Work is a duty and a right. Welfare is based a means of social and personal fulfillment. " For his part, Article 42 of the Constitution of 1979 that inspired the current rule, stated: "... The work is a right and a social duty. For the State to promote economic and social conditions that eliminate poverty and ensure equal to the inhabitants of the Republic the opportunity for a useful occupation and to protect them against unemployment and underemployment in all its manifestations .... "
9. For its part, the Universal Declaration of Human Rights, in paragraph 1 of Article 23 states that: "Everyone has the right to work, to free choice of employment, to just and favorable conditions of work and to protection against unemployment. "
10. In the same sense we have that clause 1 of Article 6 of the International Covenant on Economic, Social and Cultural Rights states: "States Parties to the present Covenant recognize the right to work, which includes the right of everyone to have the opportunity make a living by work freely chosen or accepted, and will take appropriate steps to safeguard this right. "
11. As noted in previous case, the essence of the right to work involves two aspects: First, the right to access a job, and on the other hand, the right not to be dismissed but for just cause. In the first case, the right to work is the adoption by the State of a policy aimed at the population access to a job, specifying that the fulfillment of this constitutional right implies a progressive development according to the possibilities of the state. The second aspect of the right to work is understood as a proscription to be fired except for just cause. Americo Rodriguez Pla, with respect to the termination of the employment contract "... the requirement of a" good cause "as a legitimating the dismissal" ("The principles of labor law." Ed. Depalma. Buenos Aires, Argentina, 1978, pg. 172).
12. In Peru from Decree Law No. 18471 was enshrined by legislation the term "job security" and constitutes its ultimate expression as provided in Article 48 of the 1979 Constitution, which stated that "The State recognizes the right of stability work. The employee may be dismissed only for cause, identified in the Act and duly verified. "
13. For its part, the current Constitution of 1993 in its Article 27 states that "The law grants the worker adequate protection against arbitrary dismissal." However, when it states that the development of legislation must be "appropriate" has been emphasized, though unnecessarily, that such development can not be any, but one that just provide the protection required by law but not to be dismissed for just cause. This is so because all legislative development is carried out on the constitutional scope of a fundamental right should not only affect the core or essence of this law, but must tend to its proper protection and effective, with Banning development that is insufficient or can be left defenseless to that right, ie there is a duty for the legislator to make a concrete Legislative denature the right not subject to development.
14. For this reason, when Article 27 of the Constitution provides that the law given "adequate protection against arbitrary dismissal" should be that the legislature's constitutional mandate can not be interpreted at all as an open order to enable the legislature or legal regulation it reaches the end of emptying the core content of that constitutional right. While it is true that the legislature has in its hands the power of free choice of the constitutional mandates, it is also true that this power must be exercised in harmony with the fundamental constitutional right content. One option would only lead to different interpretative rendering meaningless the aforementioned fundamental right, by dampening the normative character who holds the constitutional text.
15. In this vein, the Constitutional Court has established jurisprudence regarding the scope of Article 27 of the Constitution, acting on the adequate protection against arbitrary dismissal, noting that the legislative development of the "protection against arbitrary dismissal" should meet a minimum criterion of proportionality, ie that such measures are adequate. The College has also drawn through the contents of this fundamental right can be approached from two perspectives: first, through a regime of a "substantive" and, on the other, from a regime of a "procedural", stating further that the procedural system is the establishment by law , a system of judicial protection against arbitrary dismissal (0976-2001-AA/TC STC, STC 0253-2003-AA/TC).
16. The Court considers it necessary to reiterate that in its jurisprudence has held, on the mandate derived from Article 27 of the Constitution, which states that "the law provides adequate protection against arbitrary dismissal." Thus, this Court has argued that the mandate: a) it is a "mandate to the legislature"; b) establishes a principle of reserve law to guarantee such protection regulation; c) does not determine the form of protection from arbitrary dismissal, but that refers to the law.
17. For the Constitutional Court is not therefore address the problem from the perspective of the conceptual duality of absolute and relative stability, and from this, infer that the absence of the current Constitution-enshrined as did its predecessor, 1979 - the so-called absolute stability, all restorative protection against arbitrary dismissal would be totally unacceptable. By contrast, raised in terms of constitutional law that matters in the analysis is to determine whether the substance of a constitutional right as the right to work or not respected in their respective legislative development. More precisely, if the host protective formula respected by the legislature or not the substance of the right to work.
18. This school considers pertinent to reiterate that while the "d" of Article 7 of the Additional Protocol to the American Convention on Human Rights in the Area of \u200b\u200bEconomic, Social and Cultural Rights provides for the possibility of reparations for damages from arbitrary dismissal, must Please note that international law Human Rights lays down minimum can always be susceptible to higher levels of protection and can not mean at all, the impairment of the rights recognized by the Constitution, as established in the same article 4 of the Protocol. The interpretation of fundamental rights must therefore be always in one direction aimed at achieving higher levels of protection, whether they grant the right of national or international law.
§ 4. The defense as a protection against dismissal adversely affecting fundamental rights
19. The validity of the Constitutional Procedural Code requires a change in the legal process and that under provides, among other things, subsidiarity for the appropriateness of requests for the defense. This will change the previous procedural regime under which established an alternative system. Indeed, under Article 5, paragraph 2 of the Constitutional Litigation, not from constitutional claims when there are specific procedural way, equally satisfactory, for the protection of threatened or violated a constitutional right.
20. The Court has determined in uniform case, the process under a form of adequate procedural protection against harmful dismissal of fundamental rights. Thus it has been established, both for Huasco Llanos (STC 976-2001-AA/TC), as in the case Baylon Flores (206-2005-PA/TC STC), the process under appropriate to examine the cases of dismissal groundless, fraudulent and void dismissal dismissal, according the conditions and requirements set out in those precedents.
21. Therefore, taking into account the very purpose of protection, which is to "restore the situation to the situation before the violation or threatened violation of a constitutional right," as expressly stated in Article 1 of Law No. 28237, must concluded that it verified the existence of a dismissal with violation of fundamental rights, must order the return of the worker at the center work.
Thus, the unilateral termination of employment, will be invalidated, and therefore the dismissal be without legal effect, when produced in violation of the fundamental rights enshrined in the Constitution or treaties relating to the promotion, defense and protection of human rights.
§ 5. Compensation for length of service and character of the social benefit of foresight.
22. Article 1 of the Consolidated Text of the Law on Compensation for Time of Services approved by Supreme Decree N º 001-97-TR states that compensation for length of service has the quality of social benefit provision of the contingencies giving rise to the termination of work and promotion of workers and their family what the legislature has attempted, is that this benefit into a kind of forced savings that can cover certain contingencies against job loss. In this sense, the Constitutional Court of Colombia, referring to the severance pay, believes this is "forced savings of the worker, the employer is obliged to cancel the termination of the employment relationship and that the employee serves to subsidize their needs while remaining earnings "(Colombian Constitutional Cfr.Corte. Plenary. C-310/07 Judgement of May 3 2007. Nilson Pinilla Pinilla MP).
Taking into account the provisions in the rule regarding the nature of the right invoked provision, we must understand the meaning of the term of the forecast, so we have according to the Dictionary of the English Language 2005 Espasa-Colp, define the forecast as "Preparation of the necessary means to prevent any evil or harm."
23. Mario de la Cueva in his book Mexican Labor Law - Mexico 1949, argues that social welfare is the content of contemporary social activity but did not come out of nowhere, his story is the story of charity, charity and public assistance, but differs from them, on the grounds that they are based on human solidarity, while that "(...) is a right of workers is a consideration that is their labor power developing and have the same right as her salary perception "and defines it thus:" (...) the anticipation is the action of men, their associations and communities and peoples or nations, which has to provide regarding to the satisfaction or needs, therefore future, when they are submitted, that is the forecast, the transplant from the present to future projection the current needs in the future to provide for your satisfaction, ensuring the future of the conditions in which it develops in this ..; the safety of future existence, all of which result in the removal of the fear of tomorrow ".
24. The doctrine recognizes that the right to compensation for time served has as its basis the "social justice" based on the right of the worker so that their energy spent by the daily effort in favor of the employer, provided with a specific fee while it has worked for another, as can be seen the CTS fulfills its purpose pension when the worker is unemployed, this being so, taking into account their foresight, his recovery could not be an impediment to resort to constitutional protection, since, as its name implies, has the quality of social benefit provision to cope with a future contingency (among other reasons, be subject to unfair dismissal). Hence the non-payment by the employer, or not charging by the worker, which in practical reality would be the same, seriously endangering the livelihood or at least a decent life that is acknowledged to workers and their families, both in the Universal Declaration of Human Rights, as in other international treaties and the Constitution itself, since that he did not receive their usual remuneration base of financial support from him and his family for purposes of dismissal, the use of social benefit provision in these circumstances, only would be exercising a legitimate right, otherwise it would endorsing an act that violated fundamental rights, which is intended to cover under the pretext of a supposed will of the worker to provide for the termination of the employment relationship. This was also noted the procedural brilliantly Ignacio Burgoa Mexican "means consent [the wrongful act] when you have expressly stated by the aggrieved adherence to it verbal, written or translated into unmistakable signs. Since then, evidence of the existence of such consent to an act of authority is difficult and almost impossible to obtain, since the absence of a written statement containing the said accession by the complainant, and that in most cases does not take place, the verbal consent or can not be shown unmistakable signs without difficulty at trial. For all these reasons, we believe that the express consent of an act in question (...) in practice, is a factor difficult to prove to establish it is an unfair amparo "(Burgoa, Ignacio: The amparo, 34 th. edition. Porrua, Mexico, 1998, pp. 468-469). Then, the consent of the dismissal must result from a worker's behavior that can generate doubts, and it is clear manifestation that the worker quit to seek remedial protection provided under process.
25. That this character has been sighted materializing, from the moment that the State has been having with various legal provisions, Supreme Decrees or Emergency Decrees, the free availability of compensation for length of service, allowing workers to have the full or part of the CTS in time of economic crisis, which did not lead at any time to break the link work. This anticipatory of the CTS has been reiterated in the Law No. 29,352 (published 01/05/2009) in which Article 1 states: "The purpose of this law is to return to the Compensation for Time of Service (CTS) its nature of unemployment insurance, which allows workers to have an insured contingency for the possibility of job loss, especially if the article 37 of Supreme Decree 001-97-TR, has stated that this right comes only from the termination of worker regardless the cause that motivates him. " (Emphasis added).
26. Bolivia's Constitutional Court has also considered in its jurisprudence that "everyone has the absolute freedom to exercise their rights in the manner most suited to their interests, with the sole condition of not harming the collective interest or rights of others, therefore, deal with a serious injury or restriction of their fundamental right or guarantee the person has the constitutional freedom to define the action to be followed in this situation, either claiming against the illegal act, proposing relevant actions or, where appropriate, to consent to the act or agree with the person or authority affect your right, considering that this condition is not serious and does not warrant the initiation of appropriate legal action "(cf Bolivia's Constitutional Tribunal. Judgement Constitutional 0700/2003-R of May 22, 2003. Judge Rapporteur: Dr. José Antonio Rivera Santibañez) ";
27. While on the foregoing, it can reach a finding that a process of enforcing constitutional rights can not claim to validate an act null and void (dismissal) with a subsequent act as the collection of compensation for time services, which as already mentioned, is a benefit that belongs to the worker, whatever the cause for which his termination of employment. Then it is clear that faced with a contingency in the case of unfair dismissal, the employee is entitled to exercise its social benefit of foresight, especially when our Constitution has stipulated in Article 2, subsection 24th), "nobody is forced to do what the law does not require, or prevented from doing what she does not prohibit. (Emphasis added), this being the case the Constitutional Court as a body controller of the Constitution can not fail to act against a clear constitutional violation.
28. Neither could be considered as breaking the link will work the fact that the copper actor other social benefits (holidays, bonuses, profits, etc..) Whenever the nature of these benefits have a vested right, your payment will not show to terminate any relationship work, but only the lawful exercise of a right contrario, if the worker has agreed dismissal occur with your employer for the payment of severance pay, thus demonstrating to have opted for protection damages, also repair, you can not recourse to the Constitution.
29. The Court has been unsuccessful in cases where the worker proceeded to collect compensation for length of service criterion has been applied consistently held (STC No. 532-2001 AA / TC, 3304-2007-AA/TC, 5381-2006 6198-2007-AA/TC and AA / CT, among others) on the basis that the payment of social benefits regardless of the extinction short of the employment relationship, "the suit can not be accepted, provided that, (...) the applicant has made the collection of social benefits and, therefore has been terminate the labor relationship he had with [the] defendant"; criterion but was initially uniform, the date is in contention for what you do need to unify the law taking into account that in light of the State Constitution and the rules, not only was allowing it violates the fundamental right to work through the dismissal without cause, but you are attacking the constitutional right to freedom of the individual to determine the worker's recourse to the whenever the defense has not made payment of its compensation for length of service, we believe that this conditioning is not feasible in a social state of law, which provides sufficient guarantees for the exercise of the rights of workers, and also is consistent with the nature of social benefit provision that holds the CTS. In that sense, has also pronounced the Constitutional Court of Colombia, when he said that non-payment of CTS involves making the worker unprotected state, "because if we acknowledged the layoffs an effective tool to meet needs guess right workers, the least we can expect from this aid is to arrive in time "(cf. Colombian Constitutional Court. Plenary. T-661/97 Judgement of December 3, 1997. MP Carlos Gaviria Díaz).
§ 6. Recovery of compensation for unfair dismissal and payment of social benefits
30. In this context, it can be said, no room for doubt, that payment of compensation for unfair dismissal, as specified in Article 34 and 38 of Supreme Decree 003-97-TR, this leads to acceptance of a form of protection against dismissal , which is the precedent. So what has sustained this Collegiate consistently held, noting that "the actor from the time he proceeded to collect payment of compensation for unfair dismissal, resolutive effectiveness chose from dismissal which was being effective and not substitute, this is the procedural protection provided through the process of constitutional protection, thus leaving end of her employment, from the time the actor received adequate protection, hence the opinion of the Constitutional Court, Article 34 of Consolidated Text of the Law on Labour Productivity and Competitiveness approved by Supreme Decree 003-97-TR, in accordance with the provisions of paragraph d) of Article 7 San Salvador Protocol, in force in Peru from May 27, 1995, provides for compensation as one of the ways by which the dismissed employee arbitrarily can be protected properly (...) "(STC 03965-2007-PA/TC). In this sense, if a worker receives his compensation for unfair dismissal, on a voluntary basis, as adequate protection against arbitrary dismissal, lodging an amparo process will become irrelevant.
31. This approach is appropriate because if the employee accepts severance pay, accepts the protection provided by Article 34 of Law of Productivity and Competitiveness Act, but may then seek the path of the replacement being a contradictory claim. Consequently, when the employer makes available to the worker's compensation the dismissal, accepts the penalty of their actions, which may be accepted or rejected by the worker.
32. However, the payment of social benefits such as vacation cut short, truncated bonuses, accrued salaries, utilities and others who are due the employee should not be considered as an acceptance of illegal actions of the employer, but as the direct payment of benefits pending payment or business debts, which belong to the employee and have food nature. Because these are not, strictly, charges that are made as a form of protection against arbitrary dismissal, but concepts that apply to workers, and simply had not been collected in due course. Thus, the concepts received by the employee to terminate his employment with no fees or dues and compensation, as the employer are not gifts or payments by the conclusion of the employment relationship, but also benefits the employee had the right since before the culmination of the employment relationship.
§ 7. Indispensability to the enjoyment of social benefits
33. Finally, we can not fail to note that, clause 2) of article 26 of our Constitution enshrines the principle of irrenunciablidad labor rights recognized by the Constitution and the law, which prohibits, through acts of choice, the worker is deprived of their rights, under the limitation rules (no slides), which are public and are calling to the aforementioned protective weakest relationship (0008-2005 STC-AI / TC, FJ 24).
34. This principle is based on the protective nature of the labor law, due to inequality between the parties, so it would become void all acts of the employee to abdicate a right under a peremptory norm. Although, strictly speaking, refrain from charging the CTS and other benefits not constitute a waiver of those rights and as these concepts remain intact and intangible assets for worker, in practice they subject the recovery of the source of the amparo process, is to renounce dispose of them, in order to achieve the replacement at work, which in addition, be detrimental to the adequate protection against arbitrary dismissal, and access to justice, could create a bad habit from the employer, who after having made an arbitrary dismissal of workers available to their respective benefits, to legitimize their actions by arguing that the dismissals have been spoiled by the workers, who by the need that are forced to collect their benefits, exacerbating the disadvantage that there in the employment relationship, which just Constitutional Law Labor must match.
35. It is for this reason that to avoid a fraudulent action by the employer, the school considers necessary to establish that the employer must proceed to deposit if any compensation for unfair dismissal or other items that have the same end "incentives" unique concepts that the protection under alternative, in a separate account which corresponds to the CTS, in doing so through legal provision may not be included together with the payment of social benefits (CTS or other fees paid), which appropriation made in judicial different.
§ 8. Binding precedent.
36. For the foregoing, and pursuant to the provisions of Article VII of the Preliminary Constitutional Procedural Code, and taking into account that different courts have been applying operators the jurisprudence set by the Collegiate previous case regarding the declaration of irrelevance of the worker charged under social benefits or compensation for time served, the Court must move on to define the change of criteria developed in this ruling as binding precedent, in order to create predictability in the legal operators. Thus, the rules on origin of the protection work for recovery are as follows: a.
The receipt of benefits (compensation for length of service, vacation cut short, truncated gratuities, utilities, or other item paid) by the worker, not without the consent of unfair dismissal and therefore should not be considered grounds for inadmissibility of protection.
b. The receipt of compensation for unfair dismissal or other items that have the same end "incentives" means the acceptance of an alternative form of protection provided by law, so that should be considered as grounds for inadmissibility of amparo.
C.
Pending payment of compensation for length of service or other remuneration due to the worker concepts should be separate and distinct way to pay compensation for unfair dismissal, that is, the employer must make such payments in separate accounts or through appropriations in independent judicial processes under their responsibility.
The effects of these rules apply to the processes of the date of publication in the website of this ruling are pending, both in the judiciary, as in the Constitutional Court and those who get in later.
§ 9. Analysis of the case
In response to procedurability criteria under the demands of individual labor on private foundation established in 7 to 20 STC No. 206-2005-PA/TC, which constitute binding precedent, the Court considers that the this case is to assess whether the applicant who lodged the constitutional tort action has been or not subject to dismissal uncaused, as alleged in its complaint.
Article 22 of Supreme Decree N º 003-97-TR, determined that to dismiss an employee subject to the rules of private activity, is indispensable to have a just cause provided for by law and duly substantiated. For their part, Articles 23 º to 25 º of the Act gives an exhaustive list of just causes for dismissal related to the ability and the worker's conduct, as appropriate.
In accordance with the provisions of Article 31 of Supreme Decree N º 003-97-TR, the employer may not dismiss an employee for reasons related to their work behavior without first give in writing a reasonable period of not less than six days natural so you can defend in writing of the charges he makes.
Given that all personal services paid services and subordinates, it is presumed the existence of an employment contract for an indefinite period, to produce the termination of an employment contract is required is immersed in one of the reasons specified in Article 16 of the Law of Productivity and Competitiveness:
a) The death of the worker or the employer if an individual, b) Resignation or voluntary withdrawal of the worker; c) The completion of the work or service, the fulfillment of conditions precedent and the deadline of legal contracts concluded under mode; d) The mutual consent between the employee and employer; e) permanent total disability; f) retirement; g ) The dismissal, in the cases and manner permitted by law;
h) The termination of employment for objective reasons, in the cases and manner permitted by this Act
on pages 11 and 12, runs an employment contract for an indefinite period dated June 16, 2006 signed by the parties, by which it is stated that according to the Regional Executive Resolution No. 109-2006-Regional Government Callao-PR dated June 1, 2006, provided for the gradual adaptation of the Service Contract subject to special conditions specific to the condition of indefinite contracts, support staff, technical and professional levels, categories and places the box staffing for the CAP, provided in the Budget Analytic Staff - PAP Regional Government of Callao, which was made under the third provision Transitional Law No. 28411, having established that the work performed by employees, among which is the appellant, had the status of permanent, as textually accurate the thirteenth paragraph of the Regional Executive Resolution bounded, which copy runs Back to square 27, which reads: "That, likewise, Management Counsel, by report seen, argues that being that the status of workers, assistants, technicians and professionals from different areas of the Regional Government Callao are performing work on the levels, categories and places the Professional Staff Allocation - CAP, provided in the Budget Analytic Staff - PAP, as the organizational structure adopted by the Regional Council by Agreement No. 004-2006-GRC/CR Analytical Personal Budget. "
Bearing in mind that the contract was aimed at the worker continue to provide services to the entity to perform the activities of Attorney II in the Management of Legal Counsel, square being inside the box is staffing properly budgeted, this being so, the plaintiff could only be stopped by cause of serious misconduct under Article 25 of Supreme Decree N º 003-97-TR, not having occurred and the case, because the cause alleged by the defendant to terminate the employment of the applicant, is not within the circumstances specified in Article 16 of Supreme Decree N º 003-97-TR, or as otherwise provided in Article 46 º of bounded norm, being so, the dismissal is uncaused.
For the foregoing the Chartered estimates that the breakdown of the employment relationship, is a wrongful act of the fundamental rights of the applicant, this being so and given the order for recovery of the process under appropriate to his reinstatement in the job that was performing to the date on which the violation occurred in his right constitutional work.
As to the compensation earned, based on the order of the amparo proceedings for recovery is left to safeguard the rights of the plaintiff for asserting that the proper channels.
For these reasons, the Constitutional Court, in exercise of the powers conferred by the Constitution of Peru. RESOLVED
upheld the demand for cars, and consequently no effect let the dismissal letter dated January 5, 2007, ordering the reinstatement of Mrs. Yolanda Lara Garay your job or another of the same level or category. CONTRARY
end demand in requesting payment of wages not received, leaving the right safe for him to assert the appropriate channels.
be constituted binding precedent the rules contained in the foundation 37 of this decision: a.
The receipt of benefits, compensation for length of service, vacation cut short, truncated bonuses, profits or other remunerative concept due to the employee's consent does not constitute unfair dismissal and therefore should not be considered grounds for inadmissibility of amparo.
b. The receipt of compensation for unfair dismissal or other items that have the same end "incentives" implies acceptance of the alternative form of protection provided by law, so that should be considered as grounds for inadmissibility of amparo.
c. Pending payment of compensation for length of service or remunerative concepts due to the worker must be separate and distinct way to pay compensation for unfair dismissal or other items that have the same purpose, the employer must make such payments in separate accounts appropriation or through independent judicial processes.
The effects of these rules apply to the processes of the date of publication in the website of this ruling are pending in both the Judiciary, as in the Constitutional Court and those who get in later. NOTIFY
above the Ministry of Labour and Employment, in order to disseminate this statement and inform employees of the requirements to contest a layoff adversely affecting fundamental rights.
published and notifíquese.
SS. MESSIAH
RAMÍREZ
VERGARA Gotelli
Hayen
ETO STREET CRUZ ALVAREZ MIRANDA
URVIOLA HANI
No. CALLAO
03052-2009-PA/TC
LARA YOLANDA GARAY
CONSTITUTIONAL COURT JUDGEMENT
In Lima, on the 14th day of July 2010, the Plenum of Constitutional Court, composed of Judges Mesía Ramírez, Gotelli Vergara, Calle Hayen, Eto Cruz, Alvarez Miranda and Urviola Hani, made the following statement
Appeal Case
constitutional tort brought by Mrs. Yolanda Lara Garay, against the decision dated December 1, 2008, issued by the First Civil Chamber of the Superior Court of Callao, which declares unlawful demand for cars.
BACKGROUND On January 29, 2007 Jacqueline Maria Acosta Ramos, Yolanda Lara Garay, Clara Rojas and Cecilia Tica Rosario del Carmen Carrión Zavala, the defense Sue asking that it rescind the dismissal letter dated January 5, 2007 and accordingly ordered that they be reinstated in their jobs, to have been groundless dismissal. They argue, they are workers of the Regional Government of Callao, which have been played, first as an Attorney II in the Management of Legal Counsel, the second as an Attorney II, Legal Management, the third and Administrative Technician II in the office Protected Areas Management and Environment of the Regional Management of Natural Resources and Environmental Management and the fourth as Secretary II in the Regional Public Prosecutor, who have come signing fixed-term contracts called service-specific, the same according to the Regional Executive Resolution N º 109-2006-Regional Government of Callao-PR dated June 1, 2006 provided for the adjust gradually contracts for specific services subject to form the condition of indefinite contracts, support staff, technical and professional levels, categories and places the box to the allocation of staff-CAP, who have served in the public entity, but subject to the labor private activity, so that the dismissal without cause violates the constitutional right to work.
The summoned answer the complaint, arguing that the lawsuit is without merit because there are specific procedural way, equally satisfactory for the protection of constitutional rights is considered vulnerable, since the applicants were former public servants of the Regional Government of Callao, whose contracts were terminated by Regional Executive Resolution N º 109-2006-Regional Government of Callao / PR declared invalid by Regional Executive Resolution N º 039-2006-Regional Government of Callao / PR., so they had reason to challenge such administrative acts are within their rights to resort to litigation administrative.
Fourth Civil Court of Callao, dated August 14, 2007, states founded demand whereas the work done by the applicants are permanent.
The superior authority, overturned on appeal and dismissed the application because it considered that the applicants consented to the breach of his employment relationship, having made the payment of their benefits.
On March 27, 2009, Mrs. Yolanda Lara Garay tort action brought against the decision issued by the Superior and issued to the appellant on the constitutional tort action
BASICS § 1. Delimitation of the dispute
The purpose of the application is to be declared unenforceable dismissal letter dated January 5 2007, consequently reinstate their jobs to the plaintiffs, having been the subject of groundless dismissal, however, having brought the constitutional tort action for only one of the co-plaintiffs, this is Mrs. Yolanda Lara Garay, this Court shall act only with respect to the appellant, since the co-plaintiffs Maria Acosta Ramos, abandoned the process and Rosario del Carmen Carrión Tica Cecilia Zavala and Clara Rojas, have consented to the resolution of grievance matters.
On the other hand, considering that the demand has been rejected by referring to judgments of the Constitutional Court regarding the collection of social benefits, this school should decide this issue, so this sentence will discuss: a) the protection as a protection against dismissal damaging to fundamental rights, b) if the payment of social benefits is a tacit agreement to terminate the employment relationship, an approach that has been applying this Court consistently held (STC AA7TC No. 532-2001, 3304-2007 AA / TC, AA 6198-2007 / 5381-2006 TC and AA / TC), noting that "demand can not be accepted, since, (...) the applicant has made the payment of social benefits and, therefore, it has been terminate the labor relationship he had with [the] defendant. "
§ 2. The fundamental human rights
human
3. Article 1 of the Constitution has established that "the defense of the human person and respect for their dignity are the supreme goal of society and the state", this concept a reality set in both subjective and objective protection of the rights fundamental to any arbitrariness on the part of any authority, official or person.
4. The concept of fundamental rights includes "both ethical budgets as the legal, meaning the moral significance of an idea that compromises human dignity, moral autonomy goals, and also the legal significance that makes rights basic standard material in order, being necessary tool for the individual in society develop their full potential. Fundamental rights expressed both basic morality as a basic legality "(Peces-Barba, Gregorio: Course of Fundamental Rights. General Theory. Madrid, Universidad Carlos III de Madrid. Government Gazette, 1999, p. 37).
Consequently, although the positive recognition of fundamental rights (commonly, in the Fundamental Law) is a prerequisite for their enforcement and limit the power of the state and individuals themselves, and so is its ethical and axiological connotations, while gross concretions positive-law principle of human dignity, pre-existing state order and projected him as the supreme goal (Article 1 of the Constitution).
5. That is why Chapter I of Title I of the State Constitution, entitled "Fundamental Rights of the Person", and recognize the top-right of human dignity and the budget laws of other fundamental rights (Article 1) listing many of them in Article 2, provides in Article 3 that this enumeration does not exclude the other rights recognized in the constitutional text (ie. the fundamental social rights economic and recognized in Chapter II and the policies contained in Chapter III), "or similar nature or based on human dignity, or to the principles of popular sovereignty, the democratic rule of law and republican form of government. "
6. Thus, we can say that is the Constitution which incorporates the constitutional order, not only to the rights expressly mentioned in the text, but all those who, by implication, arising from the same principles and values \u200b\u200bthat served historical base and dogmatic for the recognition of fundamental rights. Consequently, the catalog fundamental rights enshrined in the Constitution, is complemented by one made up of unnamed rights, whose recognition is borne by the judges and, in particular, as the supreme interpreter of the Constitution, for this school. This has been done, for example, among other cases, when it defined the scope of the right to truth (STC 2488-2002-HC/TC, Genaro Villegas Namuche case), the right to drinking water (6546-2006 STC-PA / TC, where Augusto César Zúñiga López), the right to free development of personality (STC 0007-2006-PI/TC case Merchants Association San Ramon and Figari), the right to the effectiveness of laws and administrative acts (STC 0168-2005-PC/TC, Maximiliano Villanueva Valverde case), the right to recognition and protection of legal persons (STC 02432-2007-PHC/TC case Apaza Chuquitarco Rolando), among others.
7. Moreover, it is necessary to note that, under the Fourth Final and Transitory Provision of the Constitution, fundamental rights recognized therein should be construed in accordance with human rights treaties ratified by Peru.
§ 3. The right to adequate protection against arbitrary dismissal.
8. Article 22 of the Constitution states that "Work is a duty and a right. Welfare is based a means of social and personal fulfillment. " For his part, Article 42 of the Constitution of 1979 that inspired the current rule, stated: "... The work is a right and a social duty. For the State to promote economic and social conditions that eliminate poverty and ensure equal to the inhabitants of the Republic the opportunity for a useful occupation and to protect them against unemployment and underemployment in all its manifestations .... "
9. For its part, the Universal Declaration of Human Rights, in paragraph 1 of Article 23 states that: "Everyone has the right to work, to free choice of employment, to just and favorable conditions of work and to protection against unemployment. "
10. In the same sense we have that clause 1 of Article 6 of the International Covenant on Economic, Social and Cultural Rights states: "States Parties to the present Covenant recognize the right to work, which includes the right of everyone to have the opportunity make a living by work freely chosen or accepted, and will take appropriate steps to safeguard this right. "
11. As noted in previous case, the essence of the right to work involves two aspects: First, the right to access a job, and on the other hand, the right not to be dismissed but for just cause. In the first case, the right to work is the adoption by the State of a policy aimed at the population access to a job, specifying that the fulfillment of this constitutional right implies a progressive development according to the possibilities of the state. The second aspect of the right to work is understood as a proscription to be fired except for just cause. Americo Rodriguez Pla, with respect to the termination of the employment contract "... the requirement of a" good cause "as a legitimating the dismissal" ("The principles of labor law." Ed. Depalma. Buenos Aires, Argentina, 1978, pg. 172).
12. In Peru from Decree Law No. 18471 was enshrined by legislation the term "job security" and constitutes its ultimate expression as provided in Article 48 of the 1979 Constitution, which stated that "The State recognizes the right of stability work. The employee may be dismissed only for cause, identified in the Act and duly verified. "
13. For its part, the current Constitution of 1993 in its Article 27 states that "The law grants the worker adequate protection against arbitrary dismissal." However, when it states that the development of legislation must be "appropriate" has been emphasized, though unnecessarily, that such development can not be any, but one that just provide the protection required by law but not to be dismissed for just cause. This is so because all legislative development is carried out on the constitutional scope of a fundamental right should not only affect the core or essence of this law, but must tend to its proper protection and effective, with Banning development that is insufficient or can be left defenseless to that right, ie there is a duty for the legislator to make a concrete Legislative denature the right not subject to development.
14. For this reason, when Article 27 of the Constitution provides that the law given "adequate protection against arbitrary dismissal" should be that the legislature's constitutional mandate can not be interpreted at all as an open order to enable the legislature or legal regulation it reaches the end of emptying the core content of that constitutional right. While it is true that the legislature has in its hands the power of free choice of the constitutional mandates, it is also true that this power must be exercised in harmony with the fundamental constitutional right content. One option would only lead to different interpretative rendering meaningless the aforementioned fundamental right, by dampening the normative character who holds the constitutional text.
15. In this vein, the Constitutional Court has established jurisprudence regarding the scope of Article 27 of the Constitution, acting on the adequate protection against arbitrary dismissal, noting that the legislative development of the "protection against arbitrary dismissal" should meet a minimum criterion of proportionality, ie that such measures are adequate. The College has also drawn through the contents of this fundamental right can be approached from two perspectives: first, through a regime of a "substantive" and, on the other, from a regime of a "procedural", stating further that the procedural system is the establishment by law , a system of judicial protection against arbitrary dismissal (0976-2001-AA/TC STC, STC 0253-2003-AA/TC).
16. The Court considers it necessary to reiterate that in its jurisprudence has held, on the mandate derived from Article 27 of the Constitution, which states that "the law provides adequate protection against arbitrary dismissal." Thus, this Court has argued that the mandate: a) it is a "mandate to the legislature"; b) establishes a principle of reserve law to guarantee such protection regulation; c) does not determine the form of protection from arbitrary dismissal, but that refers to the law.
17. For the Constitutional Court is not therefore address the problem from the perspective of the conceptual duality of absolute and relative stability, and from this, infer that the absence of the current Constitution-enshrined as did its predecessor, 1979 - the so-called absolute stability, all restorative protection against arbitrary dismissal would be totally unacceptable. By contrast, raised in terms of constitutional law that matters in the analysis is to determine whether the substance of a constitutional right as the right to work or not respected in their respective legislative development. More precisely, if the host protective formula respected by the legislature or not the substance of the right to work.
18. This school considers pertinent to reiterate that while the "d" of Article 7 of the Additional Protocol to the American Convention on Human Rights in the Area of \u200b\u200bEconomic, Social and Cultural Rights provides for the possibility of reparations for damages from arbitrary dismissal, must Please note that international law Human Rights lays down minimum can always be susceptible to higher levels of protection and can not mean at all, the impairment of the rights recognized by the Constitution, as established in the same article 4 of the Protocol. The interpretation of fundamental rights must therefore be always in one direction aimed at achieving higher levels of protection, whether they grant the right of national or international law.
§ 4. The defense as a protection against dismissal adversely affecting fundamental rights
19. The validity of the Constitutional Procedural Code requires a change in the legal process and that under provides, among other things, subsidiarity for the appropriateness of requests for the defense. This will change the previous procedural regime under which established an alternative system. Indeed, under Article 5, paragraph 2 of the Constitutional Litigation, not from constitutional claims when there are specific procedural way, equally satisfactory, for the protection of threatened or violated a constitutional right.
20. The Court has determined in uniform case, the process under a form of adequate procedural protection against harmful dismissal of fundamental rights. Thus it has been established, both for Huasco Llanos (STC 976-2001-AA/TC), as in the case Baylon Flores (206-2005-PA/TC STC), the process under appropriate to examine the cases of dismissal groundless, fraudulent and void dismissal dismissal, according the conditions and requirements set out in those precedents.
21. Therefore, taking into account the very purpose of protection, which is to "restore the situation to the situation before the violation or threatened violation of a constitutional right," as expressly stated in Article 1 of Law No. 28237, must concluded that it verified the existence of a dismissal with violation of fundamental rights, must order the return of the worker at the center work.
Thus, the unilateral termination of employment, will be invalidated, and therefore the dismissal be without legal effect, when produced in violation of the fundamental rights enshrined in the Constitution or treaties relating to the promotion, defense and protection of human rights.
§ 5. Compensation for length of service and character of the social benefit of foresight.
22. Article 1 of the Consolidated Text of the Law on Compensation for Time of Services approved by Supreme Decree N º 001-97-TR states that compensation for length of service has the quality of social benefit provision of the contingencies giving rise to the termination of work and promotion of workers and their family what the legislature has attempted, is that this benefit into a kind of forced savings that can cover certain contingencies against job loss. In this sense, the Constitutional Court of Colombia, referring to the severance pay, believes this is "forced savings of the worker, the employer is obliged to cancel the termination of the employment relationship and that the employee serves to subsidize their needs while remaining earnings "(Colombian Constitutional Cfr.Corte. Plenary. C-310/07 Judgement of May 3 2007. Nilson Pinilla Pinilla MP).
Taking into account the provisions in the rule regarding the nature of the right invoked provision, we must understand the meaning of the term of the forecast, so we have according to the Dictionary of the English Language 2005 Espasa-Colp, define the forecast as "Preparation of the necessary means to prevent any evil or harm."
23. Mario de la Cueva in his book Mexican Labor Law - Mexico 1949, argues that social welfare is the content of contemporary social activity but did not come out of nowhere, his story is the story of charity, charity and public assistance, but differs from them, on the grounds that they are based on human solidarity, while that "(...) is a right of workers is a consideration that is their labor power developing and have the same right as her salary perception "and defines it thus:" (...) the anticipation is the action of men, their associations and communities and peoples or nations, which has to provide regarding to the satisfaction or needs, therefore future, when they are submitted, that is the forecast, the transplant from the present to future projection the current needs in the future to provide for your satisfaction, ensuring the future of the conditions in which it develops in this ..; the safety of future existence, all of which result in the removal of the fear of tomorrow ".
24. The doctrine recognizes that the right to compensation for time served has as its basis the "social justice" based on the right of the worker so that their energy spent by the daily effort in favor of the employer, provided with a specific fee while it has worked for another, as can be seen the CTS fulfills its purpose pension when the worker is unemployed, this being so, taking into account their foresight, his recovery could not be an impediment to resort to constitutional protection, since, as its name implies, has the quality of social benefit provision to cope with a future contingency (among other reasons, be subject to unfair dismissal). Hence the non-payment by the employer, or not charging by the worker, which in practical reality would be the same, seriously endangering the livelihood or at least a decent life that is acknowledged to workers and their families, both in the Universal Declaration of Human Rights, as in other international treaties and the Constitution itself, since that he did not receive their usual remuneration base of financial support from him and his family for purposes of dismissal, the use of social benefit provision in these circumstances, only would be exercising a legitimate right, otherwise it would endorsing an act that violated fundamental rights, which is intended to cover under the pretext of a supposed will of the worker to provide for the termination of the employment relationship. This was also noted the procedural brilliantly Ignacio Burgoa Mexican "means consent [the wrongful act] when you have expressly stated by the aggrieved adherence to it verbal, written or translated into unmistakable signs. Since then, evidence of the existence of such consent to an act of authority is difficult and almost impossible to obtain, since the absence of a written statement containing the said accession by the complainant, and that in most cases does not take place, the verbal consent or can not be shown unmistakable signs without difficulty at trial. For all these reasons, we believe that the express consent of an act in question (...) in practice, is a factor difficult to prove to establish it is an unfair amparo "(Burgoa, Ignacio: The amparo, 34 th. edition. Porrua, Mexico, 1998, pp. 468-469). Then, the consent of the dismissal must result from a worker's behavior that can generate doubts, and it is clear manifestation that the worker quit to seek remedial protection provided under process.
25. That this character has been sighted materializing, from the moment that the State has been having with various legal provisions, Supreme Decrees or Emergency Decrees, the free availability of compensation for length of service, allowing workers to have the full or part of the CTS in time of economic crisis, which did not lead at any time to break the link work. This anticipatory of the CTS has been reiterated in the Law No. 29,352 (published 01/05/2009) in which Article 1 states: "The purpose of this law is to return to the Compensation for Time of Service (CTS) its nature of unemployment insurance, which allows workers to have an insured contingency for the possibility of job loss, especially if the article 37 of Supreme Decree 001-97-TR, has stated that this right comes only from the termination of worker regardless the cause that motivates him. " (Emphasis added).
26. Bolivia's Constitutional Court has also considered in its jurisprudence that "everyone has the absolute freedom to exercise their rights in the manner most suited to their interests, with the sole condition of not harming the collective interest or rights of others, therefore, deal with a serious injury or restriction of their fundamental right or guarantee the person has the constitutional freedom to define the action to be followed in this situation, either claiming against the illegal act, proposing relevant actions or, where appropriate, to consent to the act or agree with the person or authority affect your right, considering that this condition is not serious and does not warrant the initiation of appropriate legal action "(cf Bolivia's Constitutional Tribunal. Judgement Constitutional 0700/2003-R of May 22, 2003. Judge Rapporteur: Dr. José Antonio Rivera Santibañez) ";
27. While on the foregoing, it can reach a finding that a process of enforcing constitutional rights can not claim to validate an act null and void (dismissal) with a subsequent act as the collection of compensation for time services, which as already mentioned, is a benefit that belongs to the worker, whatever the cause for which his termination of employment. Then it is clear that faced with a contingency in the case of unfair dismissal, the employee is entitled to exercise its social benefit of foresight, especially when our Constitution has stipulated in Article 2, subsection 24th), "nobody is forced to do what the law does not require, or prevented from doing what she does not prohibit. (Emphasis added), this being the case the Constitutional Court as a body controller of the Constitution can not fail to act against a clear constitutional violation.
28. Neither could be considered as breaking the link will work the fact that the copper actor other social benefits (holidays, bonuses, profits, etc..) Whenever the nature of these benefits have a vested right, your payment will not show to terminate any relationship work, but only the lawful exercise of a right contrario, if the worker has agreed dismissal occur with your employer for the payment of severance pay, thus demonstrating to have opted for protection damages, also repair, you can not recourse to the Constitution.
29. The Court has been unsuccessful in cases where the worker proceeded to collect compensation for length of service criterion has been applied consistently held (STC No. 532-2001 AA / TC, 3304-2007-AA/TC, 5381-2006 6198-2007-AA/TC and AA / CT, among others) on the basis that the payment of social benefits regardless of the extinction short of the employment relationship, "the suit can not be accepted, provided that, (...) the applicant has made the collection of social benefits and, therefore has been terminate the labor relationship he had with [the] defendant"; criterion but was initially uniform, the date is in contention for what you do need to unify the law taking into account that in light of the State Constitution and the rules, not only was allowing it violates the fundamental right to work through the dismissal without cause, but you are attacking the constitutional right to freedom of the individual to determine the worker's recourse to the whenever the defense has not made payment of its compensation for length of service, we believe that this conditioning is not feasible in a social state of law, which provides sufficient guarantees for the exercise of the rights of workers, and also is consistent with the nature of social benefit provision that holds the CTS. In that sense, has also pronounced the Constitutional Court of Colombia, when he said that non-payment of CTS involves making the worker unprotected state, "because if we acknowledged the layoffs an effective tool to meet needs guess right workers, the least we can expect from this aid is to arrive in time "(cf. Colombian Constitutional Court. Plenary. T-661/97 Judgement of December 3, 1997. MP Carlos Gaviria Díaz).
§ 6. Recovery of compensation for unfair dismissal and payment of social benefits
30. In this context, it can be said, no room for doubt, that payment of compensation for unfair dismissal, as specified in Article 34 and 38 of Supreme Decree 003-97-TR, this leads to acceptance of a form of protection against dismissal , which is the precedent. So what has sustained this Collegiate consistently held, noting that "the actor from the time he proceeded to collect payment of compensation for unfair dismissal, resolutive effectiveness chose from dismissal which was being effective and not substitute, this is the procedural protection provided through the process of constitutional protection, thus leaving end of her employment, from the time the actor received adequate protection, hence the opinion of the Constitutional Court, Article 34 of Consolidated Text of the Law on Labour Productivity and Competitiveness approved by Supreme Decree 003-97-TR, in accordance with the provisions of paragraph d) of Article 7 San Salvador Protocol, in force in Peru from May 27, 1995, provides for compensation as one of the ways by which the dismissed employee arbitrarily can be protected properly (...) "(STC 03965-2007-PA/TC). In this sense, if a worker receives his compensation for unfair dismissal, on a voluntary basis, as adequate protection against arbitrary dismissal, lodging an amparo process will become irrelevant.
31. This approach is appropriate because if the employee accepts severance pay, accepts the protection provided by Article 34 of Law of Productivity and Competitiveness Act, but may then seek the path of the replacement being a contradictory claim. Consequently, when the employer makes available to the worker's compensation the dismissal, accepts the penalty of their actions, which may be accepted or rejected by the worker.
32. However, the payment of social benefits such as vacation cut short, truncated bonuses, accrued salaries, utilities and others who are due the employee should not be considered as an acceptance of illegal actions of the employer, but as the direct payment of benefits pending payment or business debts, which belong to the employee and have food nature. Because these are not, strictly, charges that are made as a form of protection against arbitrary dismissal, but concepts that apply to workers, and simply had not been collected in due course. Thus, the concepts received by the employee to terminate his employment with no fees or dues and compensation, as the employer are not gifts or payments by the conclusion of the employment relationship, but also benefits the employee had the right since before the culmination of the employment relationship.
§ 7. Indispensability to the enjoyment of social benefits
33. Finally, we can not fail to note that, clause 2) of article 26 of our Constitution enshrines the principle of irrenunciablidad labor rights recognized by the Constitution and the law, which prohibits, through acts of choice, the worker is deprived of their rights, under the limitation rules (no slides), which are public and are calling to the aforementioned protective weakest relationship (0008-2005 STC-AI / TC, FJ 24).
34. This principle is based on the protective nature of the labor law, due to inequality between the parties, so it would become void all acts of the employee to abdicate a right under a peremptory norm. Although, strictly speaking, refrain from charging the CTS and other benefits not constitute a waiver of those rights and as these concepts remain intact and intangible assets for worker, in practice they subject the recovery of the source of the amparo process, is to renounce dispose of them, in order to achieve the replacement at work, which in addition, be detrimental to the adequate protection against arbitrary dismissal, and access to justice, could create a bad habit from the employer, who after having made an arbitrary dismissal of workers available to their respective benefits, to legitimize their actions by arguing that the dismissals have been spoiled by the workers, who by the need that are forced to collect their benefits, exacerbating the disadvantage that there in the employment relationship, which just Constitutional Law Labor must match.
35. It is for this reason that to avoid a fraudulent action by the employer, the school considers necessary to establish that the employer must proceed to deposit if any compensation for unfair dismissal or other items that have the same end "incentives" unique concepts that the protection under alternative, in a separate account which corresponds to the CTS, in doing so through legal provision may not be included together with the payment of social benefits (CTS or other fees paid), which appropriation made in judicial different.
§ 8. Binding precedent.
36. For the foregoing, and pursuant to the provisions of Article VII of the Preliminary Constitutional Procedural Code, and taking into account that different courts have been applying operators the jurisprudence set by the Collegiate previous case regarding the declaration of irrelevance of the worker charged under social benefits or compensation for time served, the Court must move on to define the change of criteria developed in this ruling as binding precedent, in order to create predictability in the legal operators. Thus, the rules on origin of the protection work for recovery are as follows: a.
The receipt of benefits (compensation for length of service, vacation cut short, truncated gratuities, utilities, or other item paid) by the worker, not without the consent of unfair dismissal and therefore should not be considered grounds for inadmissibility of protection.
b. The receipt of compensation for unfair dismissal or other items that have the same end "incentives" means the acceptance of an alternative form of protection provided by law, so that should be considered as grounds for inadmissibility of amparo.
C.
Pending payment of compensation for length of service or other remuneration due to the worker concepts should be separate and distinct way to pay compensation for unfair dismissal, that is, the employer must make such payments in separate accounts or through appropriations in independent judicial processes under their responsibility.
The effects of these rules apply to the processes of the date of publication in the website of this ruling are pending, both in the judiciary, as in the Constitutional Court and those who get in later.
§ 9. Analysis of the case
In response to procedurability criteria under the demands of individual labor on private foundation established in 7 to 20 STC No. 206-2005-PA/TC, which constitute binding precedent, the Court considers that the this case is to assess whether the applicant who lodged the constitutional tort action has been or not subject to dismissal uncaused, as alleged in its complaint.
Article 22 of Supreme Decree N º 003-97-TR, determined that to dismiss an employee subject to the rules of private activity, is indispensable to have a just cause provided for by law and duly substantiated. For their part, Articles 23 º to 25 º of the Act gives an exhaustive list of just causes for dismissal related to the ability and the worker's conduct, as appropriate.
In accordance with the provisions of Article 31 of Supreme Decree N º 003-97-TR, the employer may not dismiss an employee for reasons related to their work behavior without first give in writing a reasonable period of not less than six days natural so you can defend in writing of the charges he makes.
Given that all personal services paid services and subordinates, it is presumed the existence of an employment contract for an indefinite period, to produce the termination of an employment contract is required is immersed in one of the reasons specified in Article 16 of the Law of Productivity and Competitiveness:
a) The death of the worker or the employer if an individual, b) Resignation or voluntary withdrawal of the worker; c) The completion of the work or service, the fulfillment of conditions precedent and the deadline of legal contracts concluded under mode; d) The mutual consent between the employee and employer; e) permanent total disability; f) retirement; g ) The dismissal, in the cases and manner permitted by law;
h) The termination of employment for objective reasons, in the cases and manner permitted by this Act
on pages 11 and 12, runs an employment contract for an indefinite period dated June 16, 2006 signed by the parties, by which it is stated that according to the Regional Executive Resolution No. 109-2006-Regional Government Callao-PR dated June 1, 2006, provided for the gradual adaptation of the Service Contract subject to special conditions specific to the condition of indefinite contracts, support staff, technical and professional levels, categories and places the box staffing for the CAP, provided in the Budget Analytic Staff - PAP Regional Government of Callao, which was made under the third provision Transitional Law No. 28411, having established that the work performed by employees, among which is the appellant, had the status of permanent, as textually accurate the thirteenth paragraph of the Regional Executive Resolution bounded, which copy runs Back to square 27, which reads: "That, likewise, Management Counsel, by report seen, argues that being that the status of workers, assistants, technicians and professionals from different areas of the Regional Government Callao are performing work on the levels, categories and places the Professional Staff Allocation - CAP, provided in the Budget Analytic Staff - PAP, as the organizational structure adopted by the Regional Council by Agreement No. 004-2006-GRC/CR Analytical Personal Budget. "
Bearing in mind that the contract was aimed at the worker continue to provide services to the entity to perform the activities of Attorney II in the Management of Legal Counsel, square being inside the box is staffing properly budgeted, this being so, the plaintiff could only be stopped by cause of serious misconduct under Article 25 of Supreme Decree N º 003-97-TR, not having occurred and the case, because the cause alleged by the defendant to terminate the employment of the applicant, is not within the circumstances specified in Article 16 of Supreme Decree N º 003-97-TR, or as otherwise provided in Article 46 º of bounded norm, being so, the dismissal is uncaused.
For the foregoing the Chartered estimates that the breakdown of the employment relationship, is a wrongful act of the fundamental rights of the applicant, this being so and given the order for recovery of the process under appropriate to his reinstatement in the job that was performing to the date on which the violation occurred in his right constitutional work.
As to the compensation earned, based on the order of the amparo proceedings for recovery is left to safeguard the rights of the plaintiff for asserting that the proper channels.
For these reasons, the Constitutional Court, in exercise of the powers conferred by the Constitution of Peru. RESOLVED
upheld the demand for cars, and consequently no effect let the dismissal letter dated January 5, 2007, ordering the reinstatement of Mrs. Yolanda Lara Garay your job or another of the same level or category. CONTRARY
end demand in requesting payment of wages not received, leaving the right safe for him to assert the appropriate channels.
be constituted binding precedent the rules contained in the foundation 37 of this decision: a.
The receipt of benefits, compensation for length of service, vacation cut short, truncated bonuses, profits or other remunerative concept due to the employee's consent does not constitute unfair dismissal and therefore should not be considered grounds for inadmissibility of amparo.
b. The receipt of compensation for unfair dismissal or other items that have the same end "incentives" implies acceptance of the alternative form of protection provided by law, so that should be considered as grounds for inadmissibility of amparo.
c. Pending payment of compensation for length of service or remunerative concepts due to the worker must be separate and distinct way to pay compensation for unfair dismissal or other items that have the same purpose, the employer must make such payments in separate accounts appropriation or through independent judicial processes.
The effects of these rules apply to the processes of the date of publication in the website of this ruling are pending in both the Judiciary, as in the Constitutional Court and those who get in later. NOTIFY
above the Ministry of Labour and Employment, in order to disseminate this statement and inform employees of the requirements to contest a layoff adversely affecting fundamental rights.
published and notifíquese.
SS. MESSIAH
RAMÍREZ
VERGARA Gotelli
Hayen
ETO STREET CRUZ ALVAREZ MIRANDA
URVIOLA HANI
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