EXP.
No. PIURA
03189-2010-PA/TC
JEAN GONZALES HENRY
HUERTAS
JUDGEMENT OF CONSTITUTIONAL COURT
In Lima, on the 19th day of October 2010, the Second Chamber of the Constitutional Court, composed of Judges Vergara Gotelli, Alvarez Miranda and Urviola Hani, made the following statement
SUBJECT
constitutional tort Appeal lodged by Mr. Jean Henry Huertas Gonzales against the decision issued by the First Civil Chamber of the Superior Court of Justice of Piura, on pages 130, date June 17, 2010, which dismissed the application for protection. BACKGROUND
On January 7, 2010 the plaintiff brought demand for protection against the Provincial Municipality of Piura asking that it rescind the dismissal order was arbitrary, and therefore order their replacement at the Municipal Police in charge of payment of wages not received and costs process. He reports that he worked for defendant since 2008, the last work period from February 2009 through December 31, 2009, through non-personal services contracts at the beginning, and through so-called administrative service contracts at the end, and who worked under subordination and dependency and therefore invalid administrative services contracts signed (CAS). The
contest the application located stating that the case must be determined in the administrative litigation process, as the actor was hired by CAS for a specified period and at the expiration of that he was informed that the contract not be extended. In this regard attached a report stating that the actor served since February 2008 in the Management of Public Safety and Municipal Control and indicating that from July 2008 until December 2009 served by CAS, in January 2009 by agreement Third party services (current expense) and February 2009 to December 2009 by CAS (f. 27).
The Second Civil Court of Piura, dated March 22, 2010, states based on the demand side, considering that the activities of the applicant, agent Serenazgo are permanent and it also blends elements of the employment contract.
The superior authority to revoke the appeal and declared inadmissible, on the grounds that the procedural remedy of amparo is not ideal for resolving these disputes in accordance with the provisions of Article 16 of Supreme Decree No. 075 -2008-PCM. BASICS
§. Hometown demand
1. This application seeks to order the reinstatement of the plaintiff in office coming play, having been subject to arbitrary dismissal. It is alleged that the plaintiff, despite having signed civil contracts, in fact served under an indefinite-term employment relationship.
2. For its part, the part located states that the applicant was not dismissed arbitrarily, but when the deadline of its last contract administrative services are extinguished their respective contractual relationship.
3. From the arguments of the parties and in accordance with criteria of provenance in the binding precedent of the STC 00206-2005-PA/TC, the Court considers that in the present case, assessing whether the applicant has been subject to arbitrary dismissal.
§. Analysis of the case
4. To resolve the controversy raised, it should be remembered that the SSTC and 03818-2009-PA/TC 00002-2010-PI/TC and 00002-2010-PI/TC the RTC, this Court has established that the protection scheme noun-repairing against arbitrary dismissal, under the special regime of management contract labor services, is consistent with Article 27 of the Constitution.
result in the process under review if not for prior to signing the contract administrative services, contracts civilians who have signed the plaintiff were denatured, as if this had happened, the situation of fraud would be an independent period of start of contract administrative services, which is constitutional.
5. Precision made above, it is noted that the administrative contract services which are contained on pages 5, demonstrates that the applicant has maintained a fixed-term employment relationship, which led to the expiration of the term of the contract. Therefore, having completed the term of that agreement, the termination of the employment relationship of the applicant came in the form automatic, as noted by the letter h) of paragraph 13.1 of Supreme Decree 075-2008-PCM.
being so, it is concluded that the termination of employment of the plaintiff does not affect any constitutional right, so the demand can not be upheld.
For these reasons, the Constitutional Court with the authority under the Constitution of Peru
RESOLVED
declare the petition, because it has not proved the alleged violation of rights.
published and notifíquese.
SS. VERGARA
Gotelli
ALVAREZ MIRANDA
URVIOLA HANI
No. PIURA
03189-2010-PA/TC
JEAN GONZALES HENRY
HUERTAS
JUDGEMENT OF CONSTITUTIONAL COURT
In Lima, on the 19th day of October 2010, the Second Chamber of the Constitutional Court, composed of Judges Vergara Gotelli, Alvarez Miranda and Urviola Hani, made the following statement
SUBJECT
constitutional tort Appeal lodged by Mr. Jean Henry Huertas Gonzales against the decision issued by the First Civil Chamber of the Superior Court of Justice of Piura, on pages 130, date June 17, 2010, which dismissed the application for protection. BACKGROUND
On January 7, 2010 the plaintiff brought demand for protection against the Provincial Municipality of Piura asking that it rescind the dismissal order was arbitrary, and therefore order their replacement at the Municipal Police in charge of payment of wages not received and costs process. He reports that he worked for defendant since 2008, the last work period from February 2009 through December 31, 2009, through non-personal services contracts at the beginning, and through so-called administrative service contracts at the end, and who worked under subordination and dependency and therefore invalid administrative services contracts signed (CAS). The
contest the application located stating that the case must be determined in the administrative litigation process, as the actor was hired by CAS for a specified period and at the expiration of that he was informed that the contract not be extended. In this regard attached a report stating that the actor served since February 2008 in the Management of Public Safety and Municipal Control and indicating that from July 2008 until December 2009 served by CAS, in January 2009 by agreement Third party services (current expense) and February 2009 to December 2009 by CAS (f. 27).
The Second Civil Court of Piura, dated March 22, 2010, states based on the demand side, considering that the activities of the applicant, agent Serenazgo are permanent and it also blends elements of the employment contract.
The superior authority to revoke the appeal and declared inadmissible, on the grounds that the procedural remedy of amparo is not ideal for resolving these disputes in accordance with the provisions of Article 16 of Supreme Decree No. 075 -2008-PCM. BASICS
§. Hometown demand
1. This application seeks to order the reinstatement of the plaintiff in office coming play, having been subject to arbitrary dismissal. It is alleged that the plaintiff, despite having signed civil contracts, in fact served under an indefinite-term employment relationship.
2. For its part, the part located states that the applicant was not dismissed arbitrarily, but when the deadline of its last contract administrative services are extinguished their respective contractual relationship.
3. From the arguments of the parties and in accordance with criteria of provenance in the binding precedent of the STC 00206-2005-PA/TC, the Court considers that in the present case, assessing whether the applicant has been subject to arbitrary dismissal.
§. Analysis of the case
4. To resolve the controversy raised, it should be remembered that the SSTC and 03818-2009-PA/TC 00002-2010-PI/TC and 00002-2010-PI/TC the RTC, this Court has established that the protection scheme noun-repairing against arbitrary dismissal, under the special regime of management contract labor services, is consistent with Article 27 of the Constitution.
result in the process under review if not for prior to signing the contract administrative services, contracts civilians who have signed the plaintiff were denatured, as if this had happened, the situation of fraud would be an independent period of start of contract administrative services, which is constitutional.
5. Precision made above, it is noted that the administrative contract services which are contained on pages 5, demonstrates that the applicant has maintained a fixed-term employment relationship, which led to the expiration of the term of the contract. Therefore, having completed the term of that agreement, the termination of the employment relationship of the applicant came in the form automatic, as noted by the letter h) of paragraph 13.1 of Supreme Decree 075-2008-PCM.
being so, it is concluded that the termination of employment of the plaintiff does not affect any constitutional right, so the demand can not be upheld.
For these reasons, the Constitutional Court with the authority under the Constitution of Peru
RESOLVED
declare the petition, because it has not proved the alleged violation of rights.
published and notifíquese.
SS. VERGARA
Gotelli
ALVAREZ MIRANDA
URVIOLA HANI
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