As the bus moves forward, a man takes us by surprise. Begins to play his violin. What a wonderful Christmas gift ...
Thursday, December 23, 2010
Sugar Cookies Calories
The first three days in a nutshell! Night observation
Three in one:
I look forward to the door I leave the airport after customs have an in-depth review (Results: No more than a blancmange surprising that requisition). Many faces, a woman with heart-shaped balloons, people just as eager for reunion with their loved ones. Quickly seek the face of my sister, my mother, to my grandmother .... No, not fucking, another time I prefer the emotion in a sigh, again note the reality of now, things are not like before. He pulled out some coins under my mother's cell phone, no answer. 15 minutes later, three calls made, answered. Still come on the bus. I wait. Okay, now things are different. Everything changes.
II
is the night of last year's solstice, the winter. Coincides with a full moon night special, clear. The bathroom in the moonlight floods the street, bodies, covers a silver coat everything. Earlier I offered my mother do a meditation at home, she suggests the beach. Why not, he asks. Sure, I think, if the beach is on the beach! The only one not going is my sister. Witnessing my grandmother, my mother and I met with the times.
The back of a hotel is our place. Darkness attended the meeting, however refulgeante light of the moon illuminates us. I keep two white candles I light in the middle of the triangle formed by the three, they sit in one of those typical tanning benches beach or pool and I in the sand. The sea moves, flies, and in a shiny dark silver jump here and there on the tip of the waves. It looks like a silver rain, as if the stars were at sea, as if the sky were reversed. We close our eyes. Meditate. We are freed from many burdens. When you open your eyes my grandmother said she thought see the sky in the middle of the candles resting on the sand. I really thought we were all in the sky at the time of such beauty.
III
went shopping. My sister, creative curls, has but a few clothes and one pair of shoes. It is not only growing faster than what you buy things, but he is among the morass of adolescent transition. It is no longer a girl, not a girl, and does not like butterflies in the blouses, and do not like pink and light blue colors, and do not want the same type of blouse, and does not like .... blusasssssss it was bought by men's shirts but her parents called to order. Hahaha. Luckily I have not asked me. Leaving
as I said, three hours away by bus to reach the desired commercial center: Dolphin Mall The attitude of "Mamera" laziness, it desobligante attitude, boredom itself extending to us, with an attempt to patiently endure the absolute time. Until the thing breaks, I loose the drama, my mother sends her to hell and she reacts. His attitude improvement. Adolescence divine treasure, I think in a sarcastic way. Lapaulisloveyou talk to a girl, someone to give us a clue: "may not want to buy clothes with her mother and brother, maybe he wants to do it alone or with friends of her age, is already one to that old mom does not want there ", get up look, my mother inside the walk-in closet. What invasion! I understand, I tell my mother. Ahhh, blessed be lapaulisloveyou.
I look forward to the door I leave the airport after customs have an in-depth review (Results: No more than a blancmange surprising that requisition). Many faces, a woman with heart-shaped balloons, people just as eager for reunion with their loved ones. Quickly seek the face of my sister, my mother, to my grandmother .... No, not fucking, another time I prefer the emotion in a sigh, again note the reality of now, things are not like before. He pulled out some coins under my mother's cell phone, no answer. 15 minutes later, three calls made, answered. Still come on the bus. I wait. Okay, now things are different. Everything changes.
II
is the night of last year's solstice, the winter. Coincides with a full moon night special, clear. The bathroom in the moonlight floods the street, bodies, covers a silver coat everything. Earlier I offered my mother do a meditation at home, she suggests the beach. Why not, he asks. Sure, I think, if the beach is on the beach! The only one not going is my sister. Witnessing my grandmother, my mother and I met with the times.
The back of a hotel is our place. Darkness attended the meeting, however refulgeante light of the moon illuminates us. I keep two white candles I light in the middle of the triangle formed by the three, they sit in one of those typical tanning benches beach or pool and I in the sand. The sea moves, flies, and in a shiny dark silver jump here and there on the tip of the waves. It looks like a silver rain, as if the stars were at sea, as if the sky were reversed. We close our eyes. Meditate. We are freed from many burdens. When you open your eyes my grandmother said she thought see the sky in the middle of the candles resting on the sand. I really thought we were all in the sky at the time of such beauty.
III
went shopping. My sister, creative curls, has but a few clothes and one pair of shoes. It is not only growing faster than what you buy things, but he is among the morass of adolescent transition. It is no longer a girl, not a girl, and does not like butterflies in the blouses, and do not like pink and light blue colors, and do not want the same type of blouse, and does not like .... blusasssssss it was bought by men's shirts but her parents called to order. Hahaha. Luckily I have not asked me. Leaving
as I said, three hours away by bus to reach the desired commercial center: Dolphin Mall The attitude of "Mamera" laziness, it desobligante attitude, boredom itself extending to us, with an attempt to patiently endure the absolute time. Until the thing breaks, I loose the drama, my mother sends her to hell and she reacts. His attitude improvement. Adolescence divine treasure, I think in a sarcastic way. Lapaulisloveyou talk to a girl, someone to give us a clue: "may not want to buy clothes with her mother and brother, maybe he wants to do it alone or with friends of her age, is already one to that old mom does not want there ", get up look, my mother inside the walk-in closet. What invasion! I understand, I tell my mother. Ahhh, blessed be lapaulisloveyou.
Wednesday, December 15, 2010
Netopia Wireless Usb Card Ter Gusb2-n
DENATURATION OF AGREEMENT - SUBJECT TO CONTRACT TERM CONTRACT TYPE UNKNOWN - Exp 01783-2008-PA/TC
EXP .
01783-2008-PA/TC
No. AMAZONAS
HANS Wigberto
SORIANO AMPUERO
JUDGEMENT OF THE CONSTITUTIONAL COURT
In Lima, at 1 day of June 2009, the Second Chamber of the Court Constitutional judges composed Vergara Gotelli, Landa Arroyo and Alvarez Miranda, made the following statement
Appeal Case constitutional tort brought by Mr. Hans Wigberto Soriano Ampuero against the decision issued by the Joint Board Utcubamba Decentralized Superior Court of Justice of Amazonas, on pages 142, the date January 4, 2008, which declares inadmissible the petition for relief car .
BACKGROUND On June 18, 2007 the plaintiff brought claim for protection against the Municipal Electric Utility Utcubamba SAC - SAC EMSEU and against the Public Prosecutor of the Provincial Municipality of Utcubamba, requesting reinstatement is available in office Head of Operations and Maintenance Department of EMSEU. States that it has worked for the company located on 3 May 2004 to May 31, 2007, exercising the said head from the January 3, 2005. It also alleges that the activity is played by a permanent nature, being included within the Table of Allocation of Personnel (CAP). The
answer the demand placed on the grounds that the termination of the employment relationship coincided with the expiration of the temporary contract to meet market demand concluded with the appellant, and therefore has not been any dismissal not coming for both labor replenishment of the complainant.
Utcubamba The Mixed Court upheld the application states the grounds that it is undisputed that the claimant has worked since May 3, 2004 until 31 May 2007, and that the position is played in table staffing company located.
revsora The Upper Chamber, reversing the appealed claim declared inadmissible on the grounds that the matter must be determined in administrative proceedings. BASICS
1. According to the criteria procedurability under the demands of private individual working on the foundations established in 7 to 20 STC No. 0206-2005-PA/TC, which constitute binding precedent in accordance with article Preliminary Title VII of the Code of the Constitutional Court considers that in this case is necessary to carry out the verification of alleged unfair dismissal by the appellant.
2. The actor claims that his employment contract subject to the modality has been denatured why should be considered a contract of indefinite duration, because the work for which he was engaged were of a permanent nature and not accidental or temporary In addition, because the square in which he worked is budgeted and included in the Table of Allocation of Personnel of the entity located.
3. At issue then is limited to determining whether the employment contract subject to form signed by the applicant and the site has been denatured for purposes of being considered for an indefinite period, and in view of this, whether the applicant could only be fired for just cause related to his conduct or work capacity.
4. This regard it should be noted that on pages 6 to 12 cars held back substitution contracts, signed under Article 61 of the Consolidated Text of Legislative Decree No. 728, Law of Productivity and Competitiveness Act, approved by Decree Supremo No. 003-97-TR, in which shows that the company located agreed to hire the applicant to carry out the duties of Chief of Operations Department, where he served from January 3 2005. Therefore, this Court must consider whether there has been a distortion of the employment contract, because if the work for which he was hired the applicant are different in nature from those regulated by the modal type of contract held, would have simulated the conclusion of a contract subject to special conditions.
5. As noted employment contracts referred to in the foundation 4, supra, have been held in the form of contract substitution, type of contract governed by Article 61 of the aforementioned consolidated text of the Law on Labour Productivity and Competitiveness as follows:
"Substitution Agreement
Article 61 .- The contract accidental substitution is one signed between an employer and a worker with the object that replaces a company's stable worker whose employment relationship is suspended for any cause under the current legislation or effect of treaty provisions applicable in the workplace. Its duration shall be that necessary in the circumstances.
In this case the employer must reserve the position of the owner, who retains her right to reinstatement in the company, operating with their return timely termination of contract substitution.
In this type of contract are covered coverage of stable jobs, whose owner for administrative reasons must develop temporarily to other duties within the same workplace. "
6. However, the company claims located in its defense of the claim at page 101 that obrante hired the applicant and market needs require it, under Article 58 of the statute referred to above, which provides that
"The temporary contract market needs is one that takes place between an employer and a worker in order to meet short-term increases in production caused by substantial variations in demand in the market even when it comes to work ordinary part of the normal activity of the company and can not be met with permanent staff. This may be renewed successively up to the maximum term provided for in Article 74 of this Law
temporary contracts in the market needs, must contain the objective reason to justify the temporary.
This shall be supported by objective cause temporary and unpredictable increase in the normal rhythm of production activities, excluding changes in cyclical or seasonal nature that occur in some productive activities of a seasonal nature. "(Emphasis added)
7. Accordingly, Regarding the type of contract for which was contracted to the plaintiff, as declared by the entity located, which should be considered a declaration assimilated under the terms of Article 221 of the Code of Civil Procedure, the supplementary application mandated by Article IX of Preliminary Title Constitutional Procedural Code, "it expressly contradicts the contractual arrangement entered into contracts concluded between both parties manner, copies in the file. Furthermore, this College also notes that none of the contracts before the Court noted that these have been concluded on the basis of Article 58 of Supreme Decree No. 003-2009-TR, is said to have been on temporary contracts to meet market demand, much less that has been placed in one of them the objective reason to justify its conclusion.
8. By contrast, those contracts expressly mention the following: "Be it known to this document, the fixed-term contract, subject to special conditions, that under the TUO of the DL 728 (art. 61 º DS TR 003-97 and Section 86 º TR 001-96 DS Productivity and Competitiveness Act Labor) "(emphasis added)." For all the above, these contracts are considered signed in the form of substitution in order to analyze whether there was a simulation course.
9. The contract working in the mode of substitution is aimed at eventual recruitment of replacement staff, ie to replace the absence of a stable worker whose employment relationship is temporarily suspended. This stands as a solution to the employer for not halt their activities during the suspension of relations is based on circumstances or force majeure, allowing a casual hire a worker to perform the work halted. In this case, the defendant does not prove in any way that the applicant has been hired to replace any worker also does not show that the term of the contract the plaintiff has to do with the reinstatement of the worker replaced, so it is concluded that the employer would have simulated the contract subject to special conditions to cover an indefinite term.
10. Thus having established the existence of simulation in the applicant's contract, it must be regarded as an indefinite period, as established in paragraph d) of Article 77 of Supreme Decree No. 003-97-TR, reason , having been dismissed verbally without express cause whatsoever arising from his conduct or capacity to work to justify it, has violated his constitutional right to work and, as is clear from the police finding common ground on pages 48 and 49, there has been groundless dismissal and demand can be estimated.
For these reasons, the Constitutional Court with the authority under the Constitution of Peru
RESOLVED 1. Upheld the complaint.
2. Order under the Municipal Electric Utility Utcubamba SAC - SAC EMSEU reinstate Mr. Hans Wigberto Soriano Ampuero in office he occupied, or any other similar category or level. Published and notifíquese
.
SS. Gotelli VERGARA
LANDA ARROYO ALVAREZ MIRANDA
01783-2008-PA/TC
No. AMAZONAS
HANS Wigberto
SORIANO AMPUERO
JUDGEMENT OF THE CONSTITUTIONAL COURT
In Lima, at 1 day of June 2009, the Second Chamber of the Court Constitutional judges composed Vergara Gotelli, Landa Arroyo and Alvarez Miranda, made the following statement
Appeal Case constitutional tort brought by Mr. Hans Wigberto Soriano Ampuero against the decision issued by the Joint Board Utcubamba Decentralized Superior Court of Justice of Amazonas, on pages 142, the date January 4, 2008, which declares inadmissible the petition for relief car .
BACKGROUND On June 18, 2007 the plaintiff brought claim for protection against the Municipal Electric Utility Utcubamba SAC - SAC EMSEU and against the Public Prosecutor of the Provincial Municipality of Utcubamba, requesting reinstatement is available in office Head of Operations and Maintenance Department of EMSEU. States that it has worked for the company located on 3 May 2004 to May 31, 2007, exercising the said head from the January 3, 2005. It also alleges that the activity is played by a permanent nature, being included within the Table of Allocation of Personnel (CAP). The
answer the demand placed on the grounds that the termination of the employment relationship coincided with the expiration of the temporary contract to meet market demand concluded with the appellant, and therefore has not been any dismissal not coming for both labor replenishment of the complainant.
Utcubamba The Mixed Court upheld the application states the grounds that it is undisputed that the claimant has worked since May 3, 2004 until 31 May 2007, and that the position is played in table staffing company located.
revsora The Upper Chamber, reversing the appealed claim declared inadmissible on the grounds that the matter must be determined in administrative proceedings. BASICS
1. According to the criteria procedurability under the demands of private individual working on the foundations established in 7 to 20 STC No. 0206-2005-PA/TC, which constitute binding precedent in accordance with article Preliminary Title VII of the Code of the Constitutional Court considers that in this case is necessary to carry out the verification of alleged unfair dismissal by the appellant.
2. The actor claims that his employment contract subject to the modality has been denatured why should be considered a contract of indefinite duration, because the work for which he was engaged were of a permanent nature and not accidental or temporary In addition, because the square in which he worked is budgeted and included in the Table of Allocation of Personnel of the entity located.
3. At issue then is limited to determining whether the employment contract subject to form signed by the applicant and the site has been denatured for purposes of being considered for an indefinite period, and in view of this, whether the applicant could only be fired for just cause related to his conduct or work capacity.
4. This regard it should be noted that on pages 6 to 12 cars held back substitution contracts, signed under Article 61 of the Consolidated Text of Legislative Decree No. 728, Law of Productivity and Competitiveness Act, approved by Decree Supremo No. 003-97-TR, in which shows that the company located agreed to hire the applicant to carry out the duties of Chief of Operations Department, where he served from January 3 2005. Therefore, this Court must consider whether there has been a distortion of the employment contract, because if the work for which he was hired the applicant are different in nature from those regulated by the modal type of contract held, would have simulated the conclusion of a contract subject to special conditions.
5. As noted employment contracts referred to in the foundation 4, supra, have been held in the form of contract substitution, type of contract governed by Article 61 of the aforementioned consolidated text of the Law on Labour Productivity and Competitiveness as follows:
"Substitution Agreement
Article 61 .- The contract accidental substitution is one signed between an employer and a worker with the object that replaces a company's stable worker whose employment relationship is suspended for any cause under the current legislation or effect of treaty provisions applicable in the workplace. Its duration shall be that necessary in the circumstances.
In this case the employer must reserve the position of the owner, who retains her right to reinstatement in the company, operating with their return timely termination of contract substitution.
In this type of contract are covered coverage of stable jobs, whose owner for administrative reasons must develop temporarily to other duties within the same workplace. "
6. However, the company claims located in its defense of the claim at page 101 that obrante hired the applicant and market needs require it, under Article 58 of the statute referred to above, which provides that
"The temporary contract market needs is one that takes place between an employer and a worker in order to meet short-term increases in production caused by substantial variations in demand in the market even when it comes to work ordinary part of the normal activity of the company and can not be met with permanent staff. This may be renewed successively up to the maximum term provided for in Article 74 of this Law
temporary contracts in the market needs, must contain the objective reason to justify the temporary.
This shall be supported by objective cause temporary and unpredictable increase in the normal rhythm of production activities, excluding changes in cyclical or seasonal nature that occur in some productive activities of a seasonal nature. "(Emphasis added)
7. Accordingly, Regarding the type of contract for which was contracted to the plaintiff, as declared by the entity located, which should be considered a declaration assimilated under the terms of Article 221 of the Code of Civil Procedure, the supplementary application mandated by Article IX of Preliminary Title Constitutional Procedural Code, "it expressly contradicts the contractual arrangement entered into contracts concluded between both parties manner, copies in the file. Furthermore, this College also notes that none of the contracts before the Court noted that these have been concluded on the basis of Article 58 of Supreme Decree No. 003-2009-TR, is said to have been on temporary contracts to meet market demand, much less that has been placed in one of them the objective reason to justify its conclusion.
8. By contrast, those contracts expressly mention the following: "Be it known to this document, the fixed-term contract, subject to special conditions, that under the TUO of the DL 728 (art. 61 º DS TR 003-97 and Section 86 º TR 001-96 DS Productivity and Competitiveness Act Labor) "(emphasis added)." For all the above, these contracts are considered signed in the form of substitution in order to analyze whether there was a simulation course.
9. The contract working in the mode of substitution is aimed at eventual recruitment of replacement staff, ie to replace the absence of a stable worker whose employment relationship is temporarily suspended. This stands as a solution to the employer for not halt their activities during the suspension of relations is based on circumstances or force majeure, allowing a casual hire a worker to perform the work halted. In this case, the defendant does not prove in any way that the applicant has been hired to replace any worker also does not show that the term of the contract the plaintiff has to do with the reinstatement of the worker replaced, so it is concluded that the employer would have simulated the contract subject to special conditions to cover an indefinite term.
10. Thus having established the existence of simulation in the applicant's contract, it must be regarded as an indefinite period, as established in paragraph d) of Article 77 of Supreme Decree No. 003-97-TR, reason , having been dismissed verbally without express cause whatsoever arising from his conduct or capacity to work to justify it, has violated his constitutional right to work and, as is clear from the police finding common ground on pages 48 and 49, there has been groundless dismissal and demand can be estimated.
For these reasons, the Constitutional Court with the authority under the Constitution of Peru
RESOLVED 1. Upheld the complaint.
2. Order under the Municipal Electric Utility Utcubamba SAC - SAC EMSEU reinstate Mr. Hans Wigberto Soriano Ampuero in office he occupied, or any other similar category or level. Published and notifíquese
.
SS. Gotelli VERGARA
LANDA ARROYO ALVAREZ MIRANDA
Tuesday, December 14, 2010
3 Minutel Funny Speeches
Contracts for work or service can not be used to circumvent protection mandate and job stability - Exp N ° 05859-2009-PA7TC
EXP. No. 05859-2009-PA/TC
AREQUIPA
LUZMILA ANDREA PUMA QUISPE
JUDGEMENT OF THE CONSTITUTIONAL COURT
In Lima, on the 22nd day of June 2010, the First Chamber of the Constitutional Court, composed of Judges Landa Arroyo, Beaumont Callirgos and Alvarez Miranda , made the following statement
Appeal Case
constitutional tort brought by Mrs. Andrea Puma Quispe Luzmila against the decision issued by the First Civil Chamber of the Superior Court of Justice of Arequipa, on pages 332, date October 19, 2009 , declaring unfounded the claim for protection here.
BACKGROUND On January 8, 2009, the plaintiff brought request for defense against Majes Autonomous Authority (AUTODEMA) and the Public Prosecutor in charge of judicial affairs of the Regional Government of Arequipa, requesting his reinstatement in the position he occupied as Vigilante and maintenance personnel at the facilities of Camp Staff Achoma . Successive states having signed employment contracts for specific work or service, for five years and have worked since January 20, 2004 until December 31, 2008, when he was dismissed through a notary public, adds that square is occupied by a permanent nature and has been covered by someone else.
The Regional Public Prosecutor of the Regional Government of Arequipa and the Autonomous Authority Majes (AUTODEMA) Special Project-Siguas Majes independently answer the demand saying that the employment relationship with the applicant was extinguished by the contractual deadline, and that the square is not required in the CAP.
The Sixth Civil Court of Arequipa, dated May 22, 2009, said the claims unfounded considering that the employment contracts signed by the applicant has been established that temporal nature of work performed but not permanent.
The Board confirms the competent Superior appealed, similar basis. BASICS
Hometown demand
1. In response to the criteria procedurability of claims for protection on the individual labor private foundation established in 7 to 20 of the 0206-2005 STC-PA, which constitute binding precedent under the provisions of Article VII of the Preliminary Title of the Code of Constitution, in this case, it is assessing whether the applicant has been subject to arbitrary dismissal. Delimitation of the request
2. The applicant seeks rescission of the dismissal uncaused which has been claiming that their contract of employment was methylated, and, therefore, the reinstatement in their jobs.
analysis of the dispute
3. Paragraph d) of article 77 of Supreme Decree No. 003-97-TR-Law of Productivity and Competitiveness Act, provides that employment contracts are subject to special conditions denature when, among other cases, the worker is evidence of simulation or fraud to the rules established by that body.
4. On pages 74 to 89 and on pages 221 to 258 cars, held employment contracts called for specific work or service and its extensions, signed by the parties, which is evidence that both the title and the third clause is called the contract concluded with the name of contract "for particular work or service", but not required whether the employee will perform a particular work or provide a specific service, assumptions obviously different, on the other hand, assuming the version of the part located in the sense that hired the appellant to provide a specific service, see , however, that the defendant has not met the legal requirement to specify what the service for which the worker is hired, since only limited to the contract is appropriate in some cases, as Assistant A and in others, C and D Technician to perform "(...) in any sector of the scope of the project when so required, (...)"; therefore been omitted specify what the particular service to be met by the worker. It is inferred that in fact the employer uses the above type of contract as an empty formula, for the sole purpose of simulating work of permanent nature like time, incurring, thereby, in the course of denaturation of the contract mentioned in the foundation 3, which brings the contract of the applicant has become an indefinite.
5. The resort to the kind of fixed-term contract for work or service when actually running activities of the regular duties of the employment agency is to be a measure that contravenes labor provisions and principles that protect job security (Article 2, paragraph 15 of the Constitution) and safeguard the workers from arbitrary dismissal (Article 27). Supreme Decree No. 003-97-TR-Law of Productivity and Competitiveness "is a device that, in exceptional circumstances and only in the manner typified, gives the employer the power to summon workers for a specified period (either default or conditioned at the end of a work or service). Its uniqueness is that this device can not be used to circumvent the mandate of protection and job security, otherwise, they would be using a rule as a cover to violate constitutional principles, all of which constitutes an evasion of the law.
6. These behaviors are very common among employers, are not guaranteed by law. The general ban, which takes as its starting point the figure of abuse of rights, analysis is categorical from the Constitution: the Constitution does not protect abuse of the law, an assertion that is in the final paragraph of Article 103 of the Constitution. The figure of abuse of rights, fraud and the law (the prohibition of both) have the property to achieve combat formalism that serves as cover for violating the constitutional legal order. While the abuse of law presents a conflict between on the one hand, the rules that give attributes to the holder of a subjective right, and secondly, the principles that serve as ultimate reasons for their exercise; the legal fraud is the contrast between a rule that gives a power and principle , as such, compliance is mandatory [Atienza, Manuel and Juan Ruiz Manero. Illicit atypical. Second Edition, Trotta, 2006, pp. 58 et seq, 74 et seq]. As compared to both situations, not just a behavior is consistent with the rule of law, but requires that such conduct violates a principle. Emphasizing the primacy of the principles, the Constitution denies the validity of any act contrary to the principled content, although it finds support prima facie rule.
7. That the employer intends to ignore the rights of its employees by the mere invocation of the rules of engagement by the work or service can not be an allegedly covered from the Constitution. As argued, the lawfulness of conduct is not obtained by the mere fact of invoking a legal provision, since it can not be used in isolation or in disregard of constitutional principles.
8. This being so, having established that the parties was a contract for an indefinite period, the applicant could only be stopped or dismissed by the commission of serious misconduct, which has not happened in this case, since his dismissal has been based solely on the will of the employer, constituting, therefore, a dismissal uncaused, that violated labor rights and due process, so demand must be estimated.
9. To the extent that in this case, it is proved that the site has violated the plaintiff's constitutional right to work, corresponds, in accordance with Article 56. No Constitutional Procedural Code, order the payment of court costs, the which must be settled in the implementation phase of this sentence.
For these reasons, the Constitutional Court with the authority under the Constitution Peru's political
RESOLVED 1. Upheld the claim, because it has proved the violation of constitutional rights and due process work, thus annulling the dismissal of the applicant uncaused.
2. And, replacing the previous state of things in violation of the rights claimed, directs the location which, within a period of two working days, reinstate the appellant in the position he occupied before he leaves, with the payment of process costs. Published and notifíquese
.
SS.
LANDA ARROYO
BEAUMONT Callirgos
ALVAREZ MIRANDA
AREQUIPA
LUZMILA ANDREA PUMA QUISPE
JUDGEMENT OF THE CONSTITUTIONAL COURT
In Lima, on the 22nd day of June 2010, the First Chamber of the Constitutional Court, composed of Judges Landa Arroyo, Beaumont Callirgos and Alvarez Miranda , made the following statement
Appeal Case
constitutional tort brought by Mrs. Andrea Puma Quispe Luzmila against the decision issued by the First Civil Chamber of the Superior Court of Justice of Arequipa, on pages 332, date October 19, 2009 , declaring unfounded the claim for protection here.
BACKGROUND On January 8, 2009, the plaintiff brought request for defense against Majes Autonomous Authority (AUTODEMA) and the Public Prosecutor in charge of judicial affairs of the Regional Government of Arequipa, requesting his reinstatement in the position he occupied as Vigilante and maintenance personnel at the facilities of Camp Staff Achoma . Successive states having signed employment contracts for specific work or service, for five years and have worked since January 20, 2004 until December 31, 2008, when he was dismissed through a notary public, adds that square is occupied by a permanent nature and has been covered by someone else.
The Regional Public Prosecutor of the Regional Government of Arequipa and the Autonomous Authority Majes (AUTODEMA) Special Project-Siguas Majes independently answer the demand saying that the employment relationship with the applicant was extinguished by the contractual deadline, and that the square is not required in the CAP.
The Sixth Civil Court of Arequipa, dated May 22, 2009, said the claims unfounded considering that the employment contracts signed by the applicant has been established that temporal nature of work performed but not permanent.
The Board confirms the competent Superior appealed, similar basis. BASICS
Hometown demand
1. In response to the criteria procedurability of claims for protection on the individual labor private foundation established in 7 to 20 of the 0206-2005 STC-PA, which constitute binding precedent under the provisions of Article VII of the Preliminary Title of the Code of Constitution, in this case, it is assessing whether the applicant has been subject to arbitrary dismissal. Delimitation of the request
2. The applicant seeks rescission of the dismissal uncaused which has been claiming that their contract of employment was methylated, and, therefore, the reinstatement in their jobs.
analysis of the dispute
3. Paragraph d) of article 77 of Supreme Decree No. 003-97-TR-Law of Productivity and Competitiveness Act, provides that employment contracts are subject to special conditions denature when, among other cases, the worker is evidence of simulation or fraud to the rules established by that body.
4. On pages 74 to 89 and on pages 221 to 258 cars, held employment contracts called for specific work or service and its extensions, signed by the parties, which is evidence that both the title and the third clause is called the contract concluded with the name of contract "for particular work or service", but not required whether the employee will perform a particular work or provide a specific service, assumptions obviously different, on the other hand, assuming the version of the part located in the sense that hired the appellant to provide a specific service, see , however, that the defendant has not met the legal requirement to specify what the service for which the worker is hired, since only limited to the contract is appropriate in some cases, as Assistant A and in others, C and D Technician to perform "(...) in any sector of the scope of the project when so required, (...)"; therefore been omitted specify what the particular service to be met by the worker. It is inferred that in fact the employer uses the above type of contract as an empty formula, for the sole purpose of simulating work of permanent nature like time, incurring, thereby, in the course of denaturation of the contract mentioned in the foundation 3, which brings the contract of the applicant has become an indefinite.
5. The resort to the kind of fixed-term contract for work or service when actually running activities of the regular duties of the employment agency is to be a measure that contravenes labor provisions and principles that protect job security (Article 2, paragraph 15 of the Constitution) and safeguard the workers from arbitrary dismissal (Article 27). Supreme Decree No. 003-97-TR-Law of Productivity and Competitiveness "is a device that, in exceptional circumstances and only in the manner typified, gives the employer the power to summon workers for a specified period (either default or conditioned at the end of a work or service). Its uniqueness is that this device can not be used to circumvent the mandate of protection and job security, otherwise, they would be using a rule as a cover to violate constitutional principles, all of which constitutes an evasion of the law.
6. These behaviors are very common among employers, are not guaranteed by law. The general ban, which takes as its starting point the figure of abuse of rights, analysis is categorical from the Constitution: the Constitution does not protect abuse of the law, an assertion that is in the final paragraph of Article 103 of the Constitution. The figure of abuse of rights, fraud and the law (the prohibition of both) have the property to achieve combat formalism that serves as cover for violating the constitutional legal order. While the abuse of law presents a conflict between on the one hand, the rules that give attributes to the holder of a subjective right, and secondly, the principles that serve as ultimate reasons for their exercise; the legal fraud is the contrast between a rule that gives a power and principle , as such, compliance is mandatory [Atienza, Manuel and Juan Ruiz Manero. Illicit atypical. Second Edition, Trotta, 2006, pp. 58 et seq, 74 et seq]. As compared to both situations, not just a behavior is consistent with the rule of law, but requires that such conduct violates a principle. Emphasizing the primacy of the principles, the Constitution denies the validity of any act contrary to the principled content, although it finds support prima facie rule.
7. That the employer intends to ignore the rights of its employees by the mere invocation of the rules of engagement by the work or service can not be an allegedly covered from the Constitution. As argued, the lawfulness of conduct is not obtained by the mere fact of invoking a legal provision, since it can not be used in isolation or in disregard of constitutional principles.
8. This being so, having established that the parties was a contract for an indefinite period, the applicant could only be stopped or dismissed by the commission of serious misconduct, which has not happened in this case, since his dismissal has been based solely on the will of the employer, constituting, therefore, a dismissal uncaused, that violated labor rights and due process, so demand must be estimated.
9. To the extent that in this case, it is proved that the site has violated the plaintiff's constitutional right to work, corresponds, in accordance with Article 56. No Constitutional Procedural Code, order the payment of court costs, the which must be settled in the implementation phase of this sentence.
For these reasons, the Constitutional Court with the authority under the Constitution Peru's political
RESOLVED 1. Upheld the claim, because it has proved the violation of constitutional rights and due process work, thus annulling the dismissal of the applicant uncaused.
2. And, replacing the previous state of things in violation of the rights claimed, directs the location which, within a period of two working days, reinstate the appellant in the position he occupied before he leaves, with the payment of process costs. Published and notifíquese
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