EXP. No. 03334-2010-PA/TC (basis 2)
PIURA Juan Carlos Giron
SOSA OF THE CONSTITUTIONAL COURT JUDGEMENT
In Lima, on the 20th day of October 2010, the First Chamber of the Constitutional Court, composed of Judges Callirgos Beaumont, Eto Cross and Urviola Hani utters the following sentence
Appeal Case
constitutional grievance filed by Juan Carlos Girón Sosa against the decision issued by the First Civil Chamber of the Superior Court of Justice of Piura, on pages 93, the date June 4, 2010, which dismissed the petition for relief.
BACKGROUND On December 10, 2009, plaintiff brought the claim for protection against the Provincial Municipality of Piura, asking that it rescind the dismissal order was arbitrary and that, consequently, to order his reinstatement in the position he had held prior to the end, with the payment of wages not received and court costs. He reports that he served as a chauffeur in the Management of Municipal Public Security and Control, from the May 16, 2009 until November 30, 2009, through third-party service contracts, which contracts were indeed working, then worked under subordination and dependency with a monthly stipend.
The demand answers located on the grounds that the appropriate procedural route to resolve the dispute is the process administrative litigation, since the actor was the service provider (third-party service contract) for any short-term work. It also refers to the provision of services of the actor was in two periods in which there is no continuity, considering that in the last of which he served for two months and 25 days, ie has not established that it worked the second half of July in accordance with the payment vouchers submitted by the applicant himself.
The Second Civil Court of Piura, dated March 31, 2010, hereby established, in part, the request for defense, considering that the applicant state that it had worked steadily from June to November 15, 2009, exceeding the trial period under subordination and dependency, as the work of Driver is permanent in nature, and with a set schedule of work, work for which he received remuneration and which was supervised by a chief.
The superior authority to revoke the appeal and declared inadmissible, considering that the work done by the actor corresponding to an employee, so it belongs to the labor of public activity. BASICS
1. Based on the criteria procedurability of demands relating to labor under private individual established in the grounds 7 to 20 0206-2005-PA/TC STC, which are binding precedent in accordance with the provisions of Article VII of the Preliminary Title of the Code of the Constitution, in this case is appropriate to provide verification of alleged unfair dismissal by the plaintiff.
2. In the payslip on pages 9 that the actor has joined the Provincial Municipality of Piura on 15 May 2009, ie during the term of Article 37 of Law 27972, which states that municipal workers are subject to the regime private sector labor, to discharge the Public Safety Driver in the Management of Public Safety and Municipal Control. In this regard consistently held this school has stated that the work Guard Citizen Serenazgo correspond to the work carried out by a worker (STC No. 2237-2008-PA/TC, 6298-2007-PA/TC, among others).
3. Regarding the allegations of the set in the sense that the actor would have served for periods interrupted in payslips on pages 5-9, is not the ballot on the second half of July and the first half of August 2009, however, on pages 12 play the role of van services in August 2009, the afternoon shift, which includes the name of the actor. Also, the actor has made the list of personnel for services by third parties in the years 2008 and 2009, which established that he served in July and August 2009 (f. 88-90), which proves that he served from 16 May to 30 November 2009 without interruption.
4. The appellant seeks to be reinstated in his position of Driver Safety, paid work through civil contracts. Therefore, the controversy is whether these contracts were denatured and converted into employment contracts an indefinite period under the principle of the primacy of reality, in which case the actor could only be fired for cause relating to your conduct or earning capacity.
5. Article 4 of Supreme Decree 003-97-TR states that "all personal services in paid services and subordinates, it is presumed the existence of an employment contract for an indefinite period. " The case law of this school states that an employment relationship or contract of employment is set to attend and there is proof of three essential elements: (i) personal delivery by the worker, (ii) pay and (iii) subordination to the employer, the latter being the determining factor, and distinguishing characteristic of the employment contract against the lease of services.
6. In this regard, work orders and service role shifts, serenazgo and truck drivers in the second half of May June, August and November 2009, which contains the name of actor (ff. 10-13). Also, on pages 14 and 15 held in the name of the actor vouchers, stamped and signed by the Head of the Office of Maintenance, which describes the task Patrol in Piura.
7. Therefore, applying the principle of the primacy of reality, the actor served under subordination and dependence of the summoned, so his contract should be regarded as indefinite. Thus, having dismissed the plaintiff without express cause whatsoever arising from his conduct or capacity to work to justify it, have violated their constitutional rights to work, to due process and to adequate protection against arbitrary dismissal, as in merit order of the amparo proceedings for recovery, it should be the reinstatement of the plaintiff in the position he occupied.
8. To the extent that, in this case, it is proved that the municipality located violated the constitutional rights mentioned, corresponds, in accordance with Article 56 of the Code of the Constitution, to bear the court costs, which must be settled at this stage execution of sentence. Regarding the request for recovery of wages not received, in response to the restorative nature of the amparo proceedings, that point should be rejected.
For these reasons, the Constitutional Court with the authority under the Constitution of Peru,
RESOLVED 1. FOUNDED declaring, in part, the demand having been accredited under a breach of employment rights, due process and adequate protection against arbitrary dismissal.
2. ORDERED that the Provincial Municipality of Piura meets replace Don Juan Carlos Girón Sosa in office he occupied, or other similar level or hierarchy, and to pay the costs of the process.
3. Dismiss the request at the end referred to the recovery of wages not received.
published and notifíquese.
SS. BEAUMONT
Callirgos
ETO CRUZ
URVIOLA HANI
PIURA Juan Carlos Giron
SOSA OF THE CONSTITUTIONAL COURT JUDGEMENT
In Lima, on the 20th day of October 2010, the First Chamber of the Constitutional Court, composed of Judges Callirgos Beaumont, Eto Cross and Urviola Hani utters the following sentence
Appeal Case
constitutional grievance filed by Juan Carlos Girón Sosa against the decision issued by the First Civil Chamber of the Superior Court of Justice of Piura, on pages 93, the date June 4, 2010, which dismissed the petition for relief.
BACKGROUND On December 10, 2009, plaintiff brought the claim for protection against the Provincial Municipality of Piura, asking that it rescind the dismissal order was arbitrary and that, consequently, to order his reinstatement in the position he had held prior to the end, with the payment of wages not received and court costs. He reports that he served as a chauffeur in the Management of Municipal Public Security and Control, from the May 16, 2009 until November 30, 2009, through third-party service contracts, which contracts were indeed working, then worked under subordination and dependency with a monthly stipend.
The demand answers located on the grounds that the appropriate procedural route to resolve the dispute is the process administrative litigation, since the actor was the service provider (third-party service contract) for any short-term work. It also refers to the provision of services of the actor was in two periods in which there is no continuity, considering that in the last of which he served for two months and 25 days, ie has not established that it worked the second half of July in accordance with the payment vouchers submitted by the applicant himself.
The Second Civil Court of Piura, dated March 31, 2010, hereby established, in part, the request for defense, considering that the applicant state that it had worked steadily from June to November 15, 2009, exceeding the trial period under subordination and dependency, as the work of Driver is permanent in nature, and with a set schedule of work, work for which he received remuneration and which was supervised by a chief.
The superior authority to revoke the appeal and declared inadmissible, considering that the work done by the actor corresponding to an employee, so it belongs to the labor of public activity. BASICS
1. Based on the criteria procedurability of demands relating to labor under private individual established in the grounds 7 to 20 0206-2005-PA/TC STC, which are binding precedent in accordance with the provisions of Article VII of the Preliminary Title of the Code of the Constitution, in this case is appropriate to provide verification of alleged unfair dismissal by the plaintiff.
2. In the payslip on pages 9 that the actor has joined the Provincial Municipality of Piura on 15 May 2009, ie during the term of Article 37 of Law 27972, which states that municipal workers are subject to the regime private sector labor, to discharge the Public Safety Driver in the Management of Public Safety and Municipal Control. In this regard consistently held this school has stated that the work Guard Citizen Serenazgo correspond to the work carried out by a worker (STC No. 2237-2008-PA/TC, 6298-2007-PA/TC, among others).
3. Regarding the allegations of the set in the sense that the actor would have served for periods interrupted in payslips on pages 5-9, is not the ballot on the second half of July and the first half of August 2009, however, on pages 12 play the role of van services in August 2009, the afternoon shift, which includes the name of the actor. Also, the actor has made the list of personnel for services by third parties in the years 2008 and 2009, which established that he served in July and August 2009 (f. 88-90), which proves that he served from 16 May to 30 November 2009 without interruption.
4. The appellant seeks to be reinstated in his position of Driver Safety, paid work through civil contracts. Therefore, the controversy is whether these contracts were denatured and converted into employment contracts an indefinite period under the principle of the primacy of reality, in which case the actor could only be fired for cause relating to your conduct or earning capacity.
5. Article 4 of Supreme Decree 003-97-TR states that "all personal services in paid services and subordinates, it is presumed the existence of an employment contract for an indefinite period. " The case law of this school states that an employment relationship or contract of employment is set to attend and there is proof of three essential elements: (i) personal delivery by the worker, (ii) pay and (iii) subordination to the employer, the latter being the determining factor, and distinguishing characteristic of the employment contract against the lease of services.
6. In this regard, work orders and service role shifts, serenazgo and truck drivers in the second half of May June, August and November 2009, which contains the name of actor (ff. 10-13). Also, on pages 14 and 15 held in the name of the actor vouchers, stamped and signed by the Head of the Office of Maintenance, which describes the task Patrol in Piura.
7. Therefore, applying the principle of the primacy of reality, the actor served under subordination and dependence of the summoned, so his contract should be regarded as indefinite. Thus, having dismissed the plaintiff without express cause whatsoever arising from his conduct or capacity to work to justify it, have violated their constitutional rights to work, to due process and to adequate protection against arbitrary dismissal, as in merit order of the amparo proceedings for recovery, it should be the reinstatement of the plaintiff in the position he occupied.
8. To the extent that, in this case, it is proved that the municipality located violated the constitutional rights mentioned, corresponds, in accordance with Article 56 of the Code of the Constitution, to bear the court costs, which must be settled at this stage execution of sentence. Regarding the request for recovery of wages not received, in response to the restorative nature of the amparo proceedings, that point should be rejected.
For these reasons, the Constitutional Court with the authority under the Constitution of Peru,
RESOLVED 1. FOUNDED declaring, in part, the demand having been accredited under a breach of employment rights, due process and adequate protection against arbitrary dismissal.
2. ORDERED that the Provincial Municipality of Piura meets replace Don Juan Carlos Girón Sosa in office he occupied, or other similar level or hierarchy, and to pay the costs of the process.
3. Dismiss the request at the end referred to the recovery of wages not received.
published and notifíquese.
SS. BEAUMONT
Callirgos
ETO CRUZ
URVIOLA HANI
0 comments:
Post a Comment