EXP. No. 00606-2010-PA/TC (Rationale 4 d)
LIMA ALEJANDRO MORENO VEGA
JUDGEMENT OF THE CONSTITUTIONAL COURT
In Lima, 28 days of October 2010, the Second Chamber of the Constitutional Court, composed of Judges Mesía Ramírez, Hayen and Eto Cross Street, made the following statement, with the majority vote of the judges and Eto Ramírez Cruz Mesia, which added, the single vote of Judge Street Hayen, attached, and the casting vote of Judge Beaumont Callirgos, which is also attached.
constitutional tort Case Appeal lodged by Mr. Alejandro Moreno Vega against the decision of the Sixth Civil Chamber of the Superior Court of Lima, on folio 62, dated November 16, 2009, declaring inadmissible the demand for cars.
BACKGROUND On June 26, 2009, plaintiff brought the claim for protection against Kraft Foods Peru SA, seeking to rescind the dismissal of which would have been, and that, consequently, to order your reinstatement in their jobs, with the payment of wages not received, statutory interest and costs of the process. He reports that his dismissal is a disproportionate punishment and drastic, as the need to commit not serious. The Fifth Constitutional Court Specializing in Lima, dated July 1, 2009, dismissed the action, finding that the labor process is the specific procedural way, equally satisfactory, for the protection of the right allegedly affected. The Court of Review upheld the appeal on the same foundation. F
ROUNDS
1. The plaintiff seeks to rescind the arbitrary dismissal would have been, and that, therefore, be ordered to Kraft Foods Peru SA that their reinstatement in job. He claims that his dismissal was arbitrary because it is a penalty disproportionate to the misconduct.
2. On this, the school considers that in this case the applicant claims to have been fraudulent dismissal, or challenge the alleged unlawful act supporting its dismissal and therefore can not conclude that in this process, the application seeks to will determine "the truth, falsity or fitness rating from the imputation of the just cause of dismissal." On the contrary, the reading of the application shows that the applicant acknowledges having committed the offenses charged by the company located, but believes that his dismissal as a sanction disproportionate to the misconduct. Consequently, the dispute issue in this process is not focused on checking whether the just cause (misconduct imputed) to dismiss is absent or is based on fabricated evidence or imagined, but to determine whether the dismissal of the plaintiff is a disproportionate punishment.
3. In this regard, the Court finds that the lower courts have erred in qualifying when the demand, so the order should be revoked and ordered preliminary rejection is accepted for processing the application. Nevertheless, and in light of the principles of speed and economy procedure, is relevant not make use of that power, since in the case shown sufficient evidence to allow a determination of substance.
4. In view of the foregoing and without requiring proof of a station to resolve the dispute, is imposed to make the following details of a jurisprudential:
a. The dismissal will be legitimate only when the employer's decision is based on the existence of a just cause provided for by law and duly recorded in the proceedings of dismissal, which must respect the minimum guarantees afforded by the fundamental law to due process [1].
b. According to the jurisprudence of the Inter-American Court of Human Rights, the dismissals without complying with the minimum guarantees of Article 8 of the American Convention on Human Rights, have serious economic consequences for those laid off and their families and dependents, such as loss of income and declining standard of living [2].
c. The result of a penalty in the dismissal procedure should not only be the result of respecting the formal guarantees of disciplinary proceedings themselves, but also that is consistent with the principles of reasonableness and proportionality.
d. The principles of reasonableness and proportionality when imposing the penalty of dismissal shall apply taking into account the seriousness of the misconduct, the category, seniority and disciplinary records of the employee, among other things [3].
5. In the letter of allocation failures, dated May 11, 2008 which are contained on pages 2-3, it appears that the plaintiff is a serious offense charged as the following facts: a. Failure to observe safety rules because it did not request permission to work in confined spaces, although it was in charge of the work and having a co-worker inside the tank. b. Disrespected the Security Force, which was struck by not having permission to work in confined spaces. c. Not comply with safety standards, because on two previous occasions was reprimanded "for not complying with these rules when using a stepladder height without permission" and "disobeying instructions for welding." d. Repeatedly disrespect your colleagues, because in an earlier opportunity "was punished for sending text messages racy to a coworker."
6. For its part, the letter of discharge obrante at page 4, it appears that the applicant has accepted the conduct of all charged offenses that led to his dismissal. Therefore, bearing in mind that, this Collegiate concludes that in this case has not violated the principles of reasonableness and proportionality when imposing the penalty of dismissal to the complainant, since it was not the first time he committed the lack of unobservables safety standards established by the Company located, endangering the life, integrity and health of their other co-workers, nor was it the first time that lacked respect for their peers. In addition, because on previous occasions, for similar offenses to those that prompted his dismissal, the plaintiff was subjected to lesser sanctions by the Society located, as is the warning. Good account, have given their disciplinary record for the plaintiff, rather than amend and revise its employment misconduct, kept, thus violating the duty of good faith inherent in every employment relationship. For these reasons, the Constitutional Court with the authority under the Constitution of Peru
RESOLVED
dismissed as unfounded the claim for protection here. Published and notifíquese. SS. MESSIAH RAMIREZ BEAUMONT Callirgos ETO CRUZ
EXP.
00606-2010-PA/TC No.
LIMA ALEJANDRO MORENO VEGA
FEEDBACK SINGULAR
MESSIAH OF JUDGES AND ETO RAMIREZ CRUZ
Using the option provided by the Article 5. ° of the Constitutional Court Organization Act, declare, through this vote, our opinion dissenting on paper, appear to be based on the following considerations:
1. The plaintiff seeks to rescind the dismissal would have been arbitrary object, and that, therefore, be ordered to Kraft Foods Peru SA that reinstatement in his job. He claims that his dismissal was arbitrary because it is a penalty disproportionate to the misconduct.
2. The paper declared inadmissible the application because it considers the protection process is not the appropriate way to resolve the claim because it requires "the administration of evidence in order to determine the truth, falsity or fitness rating from the imputation of the just cause for dismissal. " Regard, we note that openly disagree with such consideration as in the case of present the applicant claims to have been fraudulent dismissal, or challenge the alleged unlawful act supporting its dismissal to be validly concluded that in this process, the application seeks to determine "the truth, falsity or suitability rating allegation of just cause for dismissal. " On the contrary, the reading of the application shows that the applicant acknowledges having committed the offenses charged by the company located, however, believes that his dismissal is a punishment disproportionate to the misconduct. Consequently, we assume that the dispute issue in this process is not focused on checking whether the just cause (fault imputed) to dismiss is nonexistent or based on fabricated evidence or imagined, but to determine whether the dismissal of the plaintiff is a disproportionate punishment.
3. In this regard, we believe that the lower courts have erred in qualifying when demand, the order should be revoked and ordered preliminary rejection is accepted for processing the application. Nevertheless, and in light of the principles of speed and economy, we believe relevant not make use of the aforementioned powers, since in the case shown sufficient evidence to allow a determination of substance.
4. In view of the foregoing, and without requiring proof of a station to resolve the dispute, make the following relevant estimate details of a case law: a. The dismissal will be legitimate only when the employer's decision is based on the existence of a just cause provided for by law and duly recorded in the proceedings of dismissal, which must respect the minimum guarantees afforded by the fundamental right to due process [ 4]. b. According to the jurisprudence of the Inter-American Court of Human Rights, the dismissals without complying with the minimum guarantees of Article 8 of the American Convention on Human Rights, have serious economic consequences for redundancies and their families and dependents, such as loss of income and declining standard of living [5]. c. The result of a penalty in the dismissal procedure should not only be the result of respecting the formal guarantees of disciplinary proceedings themselves, but also it is consistent with the principles of reasonableness and proportionality. d. The principles of reasonableness and proportionality when imposing the penalty of dismissal shall apply taking into account the seriousness of the misconduct, the category, seniority and disciplinary records of the employee, among other things [6].
5. In the letter of allocation failures, dated May 11, 2008 which are contained on pages 2-3, it appears that the plaintiff is a serious offense charged as the following facts: a. Failure to observe safety rules because it did not request permission to work in confined spaces, even though he was in charge of the work and having a co-worker inside the tank. b. Disrespected the Security Force, which was struck by not having permission to work in confined spaces. c. Repeated failure to safety standards, because on two previous occasions was reprimanded "for not complying with these rules when using a stepladder without permission from height" and "disobeying instructions for welding." d. It reiterated the lack of respect for his colleagues, because in an earlier opportunity "was punished for sending text messages racy to a coworker."
6. For its part, the letter of discharge obrante at page 4, it appears that the applicant has accepted the conduct of all charged offenses that led to his dismissal. Therefore, bearing in mind, we consider that in this case has not violated the principles of reasonableness and proportionality when imposing the penalty of dismissal to the complainant, as it is not the first time the plaintiff at fault for failure to observe safety regulations established by the Company located, endangering the life, integrity and health of their other colleagues, nor is it the first time that lack respect for their peers. In addition, because on previous occasions, for offenses similar to those that have motivated his dismissal, the plaintiff was subjected to lesser sanctions by the Society located, as is the warning. Good account, have given their disciplinary record for the plaintiff, rather than amend and revise its employment misconduct, he has maintained, thus violating the duty of good faith inherent in every employment relationship. For these reasons, we consider that the application must be declared unfounded.
ETO Mr. MESSIAH RAMIREZ CRUZ
EXP. LIMA 00606-2010-PA/TC No. VEGA ALEJANDRO MORENO STREET VOTE OF JUDGE Hayen
having regard constitutional tort action brought by Mr. Alejandro Moreno Vega against the decision issued by the Sixth Chamber of the Superior Court Civil of Justice of Lima, on folio 62, dated November 16, 2009, which dismissed the appeal for protection of cars, the undersigned magistrate issued the following vote: The applicant seeks rescission of the dismissal has been and that therefore replace him in his job and be paid wages not received. The Constitutional Court in STC No. 0206-2005-PA, published in the official gazette El Peruano on December 22, 2005, as part of its role in management and peacekeeping, which is inherent, and the search of improvement under process, he explained, binding, procedurability criteria under the demands of working in private and public scheme. According to the foundation 19 of that precedent has established that the protection is not the appropriate venue for the questioning of just cause for dismissal alleged by the employer in the case of disputed facts or where doubt exists about such facts, it requires the administration of evidence in order to determine the truth, falsity or proper rating of the charge of just cause for dismissal, which obviously can not be done in protection. I believe that in this case is essential to the performance of evidence by the parties to clarify the questions which the appellant to the charge of misconduct, so I consider that, in accordance with Articles 5 (paragraph 2) and 9 of the Constitutional Procedural Code and Article VII of the Preliminary Title, must declare the inadmissibility of the application in this case. For these reasons, my vote is to declare
CONTRARY demand.
Mr. STREET Hayen
EXP. No. LIMA ALEJANDRO MORENO VEGA 00606-2010-PA/TC
MAGISTRATE casting vote BEAUMONT Callirgos
With all due respect for the vote cast by Justice Street Hayen, in the present case I adhere to a vote of the judges and Eto Ramírez Cruz Mesia, since I also consider, first, that the dispute is limited by the constitutional challenge to the proportionality of the measure dismissal imposed on the charged misconduct and have been accepted by the applicant himself, and second order, consistent work behavior that the actor, both in the field of skilled labor in charge of mechanical refrigeration, as in relationships characteristic of an economic organization and people, do not support a less drastic sanction because goods are at stake constitutional and fundamental rights that fall on other workers and must be preserved by the employer. It INICE, my vote is because demand is unfounded.
S. BEAUMONT Callirgos
