EXP. No. 01715-2010-PA/TC (Rationale 7)
AREQUIPA
DIONICIO CUSI KNEW
JUDGEMENT OF THE CONSTITUTIONAL COURT
In Lima, at 2 days of September 2010, the Second Chamber of Constitutional Court, composed of Judges Mesía Ramirez, Beaumont and Eto Callirgos Cruz, made the following statement
SUBJECT
constitutional tort
Appeal lodged by Mr. Dionicio Cusi knew against the decision of the First Civil Chamber of the Superior Court of Justice Arequipa, on pages 128, the date March 3, 2010, which declared unfounded the claim for protection here. BACKGROUND
On July 24, 2009, plaintiff brought the claim for protection against Socabaya District Municipality, requesting that it reinstate the workplace as a worker of Parks and Gardens Public Cleaning Ornato, having been the victim of a layoff uncaused. States that joined to work for located since January 2005, and did so until July 1, 2009, when he was arbitrarily dismissed from their jobs. He adds that efforts made permanent in nature, under subordination and subject to a work schedule, so that violate your constitutional rights and due process work.
The demand answers located stating that the applicant has carried out work uninterrupted, as it was temporarily hired as an assistant in the area of \u200b\u200bparks and gardens, since it has qualified workers in that area.
Prime Paucarpata Mixed Court, dated September 16, 2009, states established the suit, arguing that it has become a distortion of the employment contract.
The superior jurisdiction, revoking the appeal, said the claims unfounded, considering that in the case is evidence that the applicant was hired on a temporary basis. BASICS
Hometown demand
1. First, it is necessary to determine the labor to which the applicant was subject to determine the effects of competition in this Court to hear the dispute. In this regard, it should be noted that the allegations of the parties demonstrates that the appellant admitted to work for the Municipality located since the January 1, 2005, that is, when it was already amended Article 52 of Law No. 23,853 , which stated that municipal workers are subject to the labor of private activity.
2. 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 under the provisions of article Preliminary Title VII of the Code of the Constitutional Court considers that, in this case, it is appropriate to assess whether the applicant has been subject to arbitrary dismissal. Delimitation of the request
3. In this case, the appellant seeks to reinstate the worker in his job as Parks and Gardens Public Cleaning Ornato, considering that having done work of a permanent nature, has been the victim of a groundless dismissal. Analysis
controversy 4. Article 77, subsection d) of the TUO of Legislative Decree No. 728, Law of Productivity and Competitiveness Act, approved by Supreme Decree No. 003-97-TR states that contracts are subject to special conditions deemed maturity date if the contract worker demonstrates that his contract was based on the existence of simulation or fraud to labor standards, which takes place when the services activities required under a permanent nature, and to avoid compliance with labor regulations that require the hiring of an employee for an indefinite period, a situation in which the employer appears or pretends to observe the conditions required by law to sign contracts work subject to special conditions, whose main characteristic is the timing.
5. As can be seen working certificate (f. 7), los contratos de trabajo (f. 8 a 10) y las boletas de pago (f. 38 a 47) el demandante laboró para la emplazada como obrero a partir del 8 de setiembre de 2008 y cesó el 31 de diciembre de 2008, para ser nuevamente contratado desde el 7 de enero hasta el 30 de junio de 2009. Siendo ello así, se evidencia que el demandante no realizó labores ininterrumpidas hasta el año 2009, puesto que consintió su cese con fecha 31 de diciembre de 2008. Por tanto, sólo se procederá a analizar el último periodo laborado, esto es, del 7 de enero al 30 de junio de 2009.
6. De los medios probatorios, obrantes de fojas 8, 10 y 42 a 47 de autos, se advierte que el demandante suscribió dos contratos de trabajo specific duty to labor, from 7 January to 30 June 2009, a worker in the maintenance of parks and gardens, on a temporary and exceptional.
7. However, as has already had occasion to repeat it several times, this school considers the work of Assistant Parks Irrigation is a benefit of a permanent in time, as one of the main functions of municipalities. The role of maintenance and watering parks and gardens due to a continuing need in the regular exercise of the functions of municipalities, so it follows that the position of workers responsible for maintaining parks and gardens is of a permanent nature and not temporary .
8. Therefore, temporary work contracts concluded on the basis of these assumptions should be considered for an indefinite period, and any determination by the employer for the completion of the employment relationship could only be sustained by a just cause provided by law, of Otherwise, it would be an unfair dismissal, as in this case, which ban the substance guarantees the right to work, recognized by Article 22 ° of the Constitution.
For these reasons, the Constitutional Court with the authority under the Constitution of Peru
RESOLVED
1. Upheld the claim, and consequently, NULL groundless dismissal that the appellant has suffered.
2. Restore the situation prior to the violation of right to work, it is ordered that the District Municipality of Socabaya meet restoring the applicant to the same job or another of equal or similar level within 2 business days with the payment of the costs of the process. Published and notifíquese
.
SS. MESSIAH
RAMÍREZ
BEAUMONT Callirgos
ETO CRUZ
AREQUIPA
DIONICIO CUSI KNEW
JUDGEMENT OF THE CONSTITUTIONAL COURT In Lima, at 2 days of September 2010, the Second Chamber of Constitutional Court, composed of Judges Mesía Ramirez, Beaumont and Eto Callirgos Cruz, made the following statement
SUBJECT
constitutional tort
Appeal lodged by Mr. Dionicio Cusi knew against the decision of the First Civil Chamber of the Superior Court of Justice Arequipa, on pages 128, the date March 3, 2010, which declared unfounded the claim for protection here. BACKGROUND
On July 24, 2009, plaintiff brought the claim for protection against Socabaya District Municipality, requesting that it reinstate the workplace as a worker of Parks and Gardens Public Cleaning Ornato, having been the victim of a layoff uncaused. States that joined to work for located since January 2005, and did so until July 1, 2009, when he was arbitrarily dismissed from their jobs. He adds that efforts made permanent in nature, under subordination and subject to a work schedule, so that violate your constitutional rights and due process work.
The demand answers located stating that the applicant has carried out work uninterrupted, as it was temporarily hired as an assistant in the area of \u200b\u200bparks and gardens, since it has qualified workers in that area.
Prime Paucarpata Mixed Court, dated September 16, 2009, states established the suit, arguing that it has become a distortion of the employment contract.
The superior jurisdiction, revoking the appeal, said the claims unfounded, considering that in the case is evidence that the applicant was hired on a temporary basis. BASICS
Hometown demand
1. First, it is necessary to determine the labor to which the applicant was subject to determine the effects of competition in this Court to hear the dispute. In this regard, it should be noted that the allegations of the parties demonstrates that the appellant admitted to work for the Municipality located since the January 1, 2005, that is, when it was already amended Article 52 of Law No. 23,853 , which stated that municipal workers are subject to the labor of private activity.
2. 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 under the provisions of article Preliminary Title VII of the Code of the Constitutional Court considers that, in this case, it is appropriate to assess whether the applicant has been subject to arbitrary dismissal. Delimitation of the request
3. In this case, the appellant seeks to reinstate the worker in his job as Parks and Gardens Public Cleaning Ornato, considering that having done work of a permanent nature, has been the victim of a groundless dismissal. Analysis
controversy 4. Article 77, subsection d) of the TUO of Legislative Decree No. 728, Law of Productivity and Competitiveness Act, approved by Supreme Decree No. 003-97-TR states that contracts are subject to special conditions deemed maturity date if the contract worker demonstrates that his contract was based on the existence of simulation or fraud to labor standards, which takes place when the services activities required under a permanent nature, and to avoid compliance with labor regulations that require the hiring of an employee for an indefinite period, a situation in which the employer appears or pretends to observe the conditions required by law to sign contracts work subject to special conditions, whose main characteristic is the timing.
5. As can be seen working certificate (f. 7), los contratos de trabajo (f. 8 a 10) y las boletas de pago (f. 38 a 47) el demandante laboró para la emplazada como obrero a partir del 8 de setiembre de 2008 y cesó el 31 de diciembre de 2008, para ser nuevamente contratado desde el 7 de enero hasta el 30 de junio de 2009. Siendo ello así, se evidencia que el demandante no realizó labores ininterrumpidas hasta el año 2009, puesto que consintió su cese con fecha 31 de diciembre de 2008. Por tanto, sólo se procederá a analizar el último periodo laborado, esto es, del 7 de enero al 30 de junio de 2009.
6. De los medios probatorios, obrantes de fojas 8, 10 y 42 a 47 de autos, se advierte que el demandante suscribió dos contratos de trabajo specific duty to labor, from 7 January to 30 June 2009, a worker in the maintenance of parks and gardens, on a temporary and exceptional.
7. However, as has already had occasion to repeat it several times, this school considers the work of Assistant Parks Irrigation is a benefit of a permanent in time, as one of the main functions of municipalities. The role of maintenance and watering parks and gardens due to a continuing need in the regular exercise of the functions of municipalities, so it follows that the position of workers responsible for maintaining parks and gardens is of a permanent nature and not temporary .
8. Therefore, temporary work contracts concluded on the basis of these assumptions should be considered for an indefinite period, and any determination by the employer for the completion of the employment relationship could only be sustained by a just cause provided by law, of Otherwise, it would be an unfair dismissal, as in this case, which ban the substance guarantees the right to work, recognized by Article 22 ° of the Constitution.
For these reasons, the Constitutional Court with the authority under the Constitution of Peru
RESOLVED
1. Upheld the claim, and consequently, NULL groundless dismissal that the appellant has suffered.
2. Restore the situation prior to the violation of right to work, it is ordered that the District Municipality of Socabaya meet restoring the applicant to the same job or another of equal or similar level within 2 business days with the payment of the costs of the process. Published and notifíquese
.
SS. MESSIAH
RAMÍREZ
BEAUMONT Callirgos
ETO CRUZ
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