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
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