EXP. No. 03017-2010-PA/TC (Fundamentals 1 and 3)
PIURA
SANDY AGUILAR PAUL
QUEZADA
JUDGEMENT OF THE CONSTITUTIONAL COURT
In Lima, on the 6th day of October 2010, the Second Chamber of the Constitutional Court, composed of Judges Vergara Gotelli, Alvarez Miranda Urviola Hani, made the following statement
SUBJECT
constitutional tort
Appeal lodged by Mr. Sandy Paul Aguilar Quezada against the decision issued by the Second Chamber in Civil Superior Court of Justice of Piura, on pages 89, the date July 12, 2010, which dismissed the claim for protection here. BACKGROUND
On December 18, 2009 the plaintiff brought claim for protection against the Provincial Municipality of Piura asking that it rescind the verbal dismissal has been, and therefore replace it in the same position and level, you cancel the not received salaries and providing for payment of costs. States that provided work for the entity in question permanently and continuously from 16 June to 16 November 2009, when he was fired without cause. The proposed
located except for lack of exhaustion of administrative review, and answer the complaint stating that there was no breach any rights of the applicant and there is a specific procedural avenue and suitable for ventilating the claim that is contentious - administrative.
Third Special Civil Court of Piura, dated April 13, 2010, states founded on the grounds that demand has determined the employment status of the services provided by the actor, taking into account the principle of the primacy of reality.
The Second Civil Chamber of Piura in revoking the appeal, declared inadmissible the application because it considered that to discuss more fully the constitutional rights alleged by the plaintiff requires the administration of evidence in accordance with the provisions paragraph 2) of Article 5 of the Constitutional Procedural Code.
Hometown
BASICS
demand
1. First, it is necessary to determine the labor to which the applicant had been subject to clarify the jurisdiction of this Court to hear the dispute. At present about this shows that the appellant admitted to provide services to located the June 16, 2009, that is, when it was in force Article 37 of Law No. 27972, which states that municipal workers are subject to the labor of private activity.
2. On the other hand the determination that the applicant had been subjected to the labor of the private sector, since it alleges to have served as municipal workers, and taking into account the criteria procedurability of claims relating to labor under private individual, set in the grounds 7 to 20 STC No. 0206-2005-PA/TC, which constitute binding precedent under the provisions of Article VII of the Preliminary Title of the Code of the Constitution, in this case is to assess whether the applicant has been a victim of unfair dismissal. Delimitation of the request
3. The purpose of the application is for an order directing the Provincial Municipality of Piura to reinstate the applicant in the position he occupied as a laborer in the field of public cleanliness, he cancel not received wages and providing for payment of costs on the grounds that it infringed his constitutional right to work. Analysis
controversy 4. This dispute centers on whether the provision of recurring services performed can be considered as a contract of indefinite duration, in order to apply the principle of the primacy of reality, then verified that there was a relationship in nature work, the applicant could only be fired for just cause related to his conduct or work capacity.
5. Article 4 of Supreme Decree No. 003-97-TR states that "In all personal services paid services and subordinates, it is presumed the existence of an employment contract for an indefinite period. "
6. On the other hand it should be noted that any employment relationship or contract of employment is set to attend and there is proof of three essential elements: (1) personal delivery by the employee, (2) compensation and (3) the subordination to the employer.
7. In relation to the principle of the primacy of reality it has been clarified in the STC No. 1944-2002-AA/TC, that "(...) in the event of discrepancies between what happens in practice and what flows from documents, should be preferred to the former; ie what happens in the realm of facts "(principle 3).
8. It should be noted that the claims located in the defense of the claim that the complainant was hired through the special arrangements CAS, however in page 30 of Court records, Report No. 004-2010-ESC-UPT-OPER/MPP of dated January 7, 2010, issued by the Technical Office Roster Staff Technical Processes Unit of the Provincial Municipality of Piura, through which indicated that the review of the database of the Integrated Municipal Management - Human Resources module verifies that the applicant is not registered as a worker located and does not belong to any labor system public, private or special arrangements, but with payment vouchers issued by the Integrated Financial Management System of the Provincial Municipality of Piura, the same act on pages 4 to 8 cars, is certifying that the actor was paid for services by third parties and not by the so-called administrative service contracts.
9. Also proof of payment procedure on pages 4 to 8 confirmed that the applicant provided services by third parties as public sanitation worker in the activity of "Improving Public Service Cleaning the city of Piura," and he held an employment relationship Uninterrupted demand from the June 16, 2009 until November 16, 2009 in exchange for payment (S /. 550.00), an amount that is repaid when complying with a schedule of eight hours and is subject to subordination.
10. Similarly it should be noted that uniform jurisprudential approach of the Court (STC 04983-2009, PA, 01891-2009, PA, 00466-2009 STC-PA, STC, PA 05958-2008, STC, PA 04481-2008, among other ) consider that "(...) public cleaning work is a benefit of a permanent in time, as one of the main functions of municipalities."
11. Therefore, the third party service provided by the applicant to the Provincial Municipality of Piura, on Based on 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, otherwise it would be an unfair dismissal, as in this case, which ban the substance guarantees the right to work, recognized by Articles 22 and 27 º of the Constitution, so it must estimate the demand.
12. Regarding the request for payment of wages not received, it should be noted that these, having nature for damages, not restitution, are not covered by economic under process.
13. Regarding the payment of costs of the process, having violated the right to work the claimant in accordance with Article 56. No Constitutional Procedural Code, it is ordered that the notice to bear the court costs, which must be settled on the stage implementation of this decision.
For these reasons, the Constitutional Court with the authority under the Constitution of Peru
RESOLVED 1. Upheld the request for defense for having established the infringement of the right to work and consequently the act of dismissal NULL uncaused provisions detrimental to the plaintiff.
2. Direct the Provincial Municipality of Piura to replace Sandy Don Paul Aguilar Quezada in the position he held before his departure, or one in the same category with the payment of the costs of the process.
3. To declare the end of the application which requested the payment of wages not received. Published and notifíquese
.
SS. Gotelli VERGARA
ALVAREZ MIRANDA
URVIOLA HANI
PIURA
SANDY AGUILAR PAUL
QUEZADA
JUDGEMENT OF THE CONSTITUTIONAL COURT
In Lima, on the 6th day of October 2010, the Second Chamber of the Constitutional Court, composed of Judges Vergara Gotelli, Alvarez Miranda Urviola Hani, made the following statement
SUBJECT
constitutional tort
Appeal lodged by Mr. Sandy Paul Aguilar Quezada against the decision issued by the Second Chamber in Civil Superior Court of Justice of Piura, on pages 89, the date July 12, 2010, which dismissed the claim for protection here. BACKGROUND
On December 18, 2009 the plaintiff brought claim for protection against the Provincial Municipality of Piura asking that it rescind the verbal dismissal has been, and therefore replace it in the same position and level, you cancel the not received salaries and providing for payment of costs. States that provided work for the entity in question permanently and continuously from 16 June to 16 November 2009, when he was fired without cause. The proposed
located except for lack of exhaustion of administrative review, and answer the complaint stating that there was no breach any rights of the applicant and there is a specific procedural avenue and suitable for ventilating the claim that is contentious - administrative.
Third Special Civil Court of Piura, dated April 13, 2010, states founded on the grounds that demand has determined the employment status of the services provided by the actor, taking into account the principle of the primacy of reality.
The Second Civil Chamber of Piura in revoking the appeal, declared inadmissible the application because it considered that to discuss more fully the constitutional rights alleged by the plaintiff requires the administration of evidence in accordance with the provisions paragraph 2) of Article 5 of the Constitutional Procedural Code.
Hometown
BASICS
demand
1. First, it is necessary to determine the labor to which the applicant had been subject to clarify the jurisdiction of this Court to hear the dispute. At present about this shows that the appellant admitted to provide services to located the June 16, 2009, that is, when it was in force Article 37 of Law No. 27972, which states that municipal workers are subject to the labor of private activity.
2. On the other hand the determination that the applicant had been subjected to the labor of the private sector, since it alleges to have served as municipal workers, and taking into account the criteria procedurability of claims relating to labor under private individual, set in the grounds 7 to 20 STC No. 0206-2005-PA/TC, which constitute binding precedent under the provisions of Article VII of the Preliminary Title of the Code of the Constitution, in this case is to assess whether the applicant has been a victim of unfair dismissal. Delimitation of the request
3. The purpose of the application is for an order directing the Provincial Municipality of Piura to reinstate the applicant in the position he occupied as a laborer in the field of public cleanliness, he cancel not received wages and providing for payment of costs on the grounds that it infringed his constitutional right to work. Analysis
controversy 4. This dispute centers on whether the provision of recurring services performed can be considered as a contract of indefinite duration, in order to apply the principle of the primacy of reality, then verified that there was a relationship in nature work, the applicant could only be fired for just cause related to his conduct or work capacity.
5. Article 4 of Supreme Decree No. 003-97-TR states that "In all personal services paid services and subordinates, it is presumed the existence of an employment contract for an indefinite period. "
6. On the other hand it should be noted that any employment relationship or contract of employment is set to attend and there is proof of three essential elements: (1) personal delivery by the employee, (2) compensation and (3) the subordination to the employer.
7. In relation to the principle of the primacy of reality it has been clarified in the STC No. 1944-2002-AA/TC, that "(...) in the event of discrepancies between what happens in practice and what flows from documents, should be preferred to the former; ie what happens in the realm of facts "(principle 3).
8. It should be noted that the claims located in the defense of the claim that the complainant was hired through the special arrangements CAS, however in page 30 of Court records, Report No. 004-2010-ESC-UPT-OPER/MPP of dated January 7, 2010, issued by the Technical Office Roster Staff Technical Processes Unit of the Provincial Municipality of Piura, through which indicated that the review of the database of the Integrated Municipal Management - Human Resources module verifies that the applicant is not registered as a worker located and does not belong to any labor system public, private or special arrangements, but with payment vouchers issued by the Integrated Financial Management System of the Provincial Municipality of Piura, the same act on pages 4 to 8 cars, is certifying that the actor was paid for services by third parties and not by the so-called administrative service contracts.
9. Also proof of payment procedure on pages 4 to 8 confirmed that the applicant provided services by third parties as public sanitation worker in the activity of "Improving Public Service Cleaning the city of Piura," and he held an employment relationship Uninterrupted demand from the June 16, 2009 until November 16, 2009 in exchange for payment (S /. 550.00), an amount that is repaid when complying with a schedule of eight hours and is subject to subordination.
10. Similarly it should be noted that uniform jurisprudential approach of the Court (STC 04983-2009, PA, 01891-2009, PA, 00466-2009 STC-PA, STC, PA 05958-2008, STC, PA 04481-2008, among other ) consider that "(...) public cleaning work is a benefit of a permanent in time, as one of the main functions of municipalities."
11. Therefore, the third party service provided by the applicant to the Provincial Municipality of Piura, on Based on 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, otherwise it would be an unfair dismissal, as in this case, which ban the substance guarantees the right to work, recognized by Articles 22 and 27 º of the Constitution, so it must estimate the demand.
12. Regarding the request for payment of wages not received, it should be noted that these, having nature for damages, not restitution, are not covered by economic under process.
13. Regarding the payment of costs of the process, having violated the right to work the claimant in accordance with Article 56. No Constitutional Procedural Code, it is ordered that the notice to bear the court costs, which must be settled on the stage implementation of this decision.
For these reasons, the Constitutional Court with the authority under the Constitution of Peru
RESOLVED 1. Upheld the request for defense for having established the infringement of the right to work and consequently the act of dismissal NULL uncaused provisions detrimental to the plaintiff.
2. Direct the Provincial Municipality of Piura to replace Sandy Don Paul Aguilar Quezada in the position he held before his departure, or one in the same category with the payment of the costs of the process.
3. To declare the end of the application which requested the payment of wages not received. Published and notifíquese
.
SS. Gotelli VERGARA
ALVAREZ MIRANDA
URVIOLA HANI
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