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
.
SS.
LANDA ARROYO
BEAUMONT Callirgos
ALVAREZ MIRANDA
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