EXP. N.° 01254-2010-PA/TC
LIMA
RAFAEL ANASTACIO
JAVIER MALDONADO
SENTENCIA DEL TRIBUNAL CONSTITUCIONAL
En Lima, a los 15 días del mes de octubre de 2010, la Sala Segunda del Tribunal Constitucional, integrada por los magistrados Mesía Ramírez, Calle Hayen y Eto Cruz, pronuncia la siguiente sentencia
ASUNTO
Recurso de agravio constitucional interpuesto por don Rafael Anastacio Javier Maldonado contra la sentencia expedida por la Segunda Sala Civil de la Corte Superior de Justicia de Lima, de fojas 339, que dismissed the demand for cars. BACKGROUND
On March 27, 2007, plaintiff brought the claim for protection against the District Municipality of Surco, seeking to rescind his dismissal, held on December 31, 2006, and has reinstatement in the position he occupied as a canal coming. States that entered service the City in March 1998 and January 2002 was hired as a worker subject to special conditions, a condition in which he worked for the Municipality through successive renewals until the date of his dismissal. Adds, however, has made since the start of the municipalities own work and not those of a temporary nature, so that from the beginning would have behaved as a laborer for an indefinite period of the entity, and not as a temporary worker, so it could not be dismissed but only for cause in his conduct or capacity, and after a procedure with all the guarantees. States that have violated their rights to due process and to work.
The City defendant answer the complaint noting that in this case there was no redundancy whatsoever but only the extinction of the link as a result of being tested within the applicant's employment contract.
The Fifty Civil Court of Lima declared founded the action, finding that notwithstanding what is stated in the contracts in this case the plaintiff was acting in practice as an employee of the municipality. The Board reversed the decision of the court and dismissed the action, finding that it should be understood that the dispute was referred to the labor and not to private groups, taking into account the date on which the applicant began providing services in the municipality defendant. BASICS
1. From the evidence submitted by the parties and their allegations, it is established that the appellant was employed as a worker subject to special conditions in January 2002 ie, when it was already amended Article 52 of Law No. 23853, which provided that municipal workers are subject to the labor of private activity.
2. Thus, having determined that the applicant was subject to the labor of private activity, and taking into account the criteria procedurability under the demands of individual labor on private foundations established in 7 to 20 STC N . º 0206-2005-PA/TC, which constitute binding precedent in this case is to assess whether the applicant has been subject to arbitrary dismissal.
§ Definition of request
3. In this case the appellant seeks to be reinstated in his job as manager canal improvement of parks and gardens in the District Municipality of Santiago de Surco, considering that it has violated their constitutional rights to freedom of work, due process and defense.
4. Contracts for temporary nature of the plaintiff and the answer to the complaint, we conclude that the plaintiff worked from January 2002 through December 31, 2006, as the canal area of \u200b\u200bimprovement of parks and gardens.
§ Analysis of the dispute
5. With respect to contract work subject to special conditions, it should be noted that this type of contract is fixed term, since it has as a justification for holding the temporary nature of casual or temporary service will be paid, ie, in determining its celebration should take into account the temporary or transitory nature of service required, because if a worker is hired through this type of contract to carry out work of a permanent nature and not temporary, or face a continuing need and not transitory, it have simulated the conclusion of a fixed-term contract, when in fact it required an indefinite.
6. Therefore, to determine whether successive instruments offered employment contracts containing temporary in nature have been simulated and thus denatured, be assumed to analyze the nature of the need for which was signed by the applicant. To that end, temporary contracts market need presented by the actor states that he was hired as canal workers taking employment as a cause of "the need of the Municipality of Santiago de Surco to meet the constant requests from neighbors about improving parks and gardens in the district, "whenever the defendant municipality" requires constant care applications neighbors on improving parks and gardens in the district "(folio 7 to 14).
7. In this regard, one can establish that "is not enough to invoke a specific causal recruitment but that this case should really be configured to proceed the temporary, or at least, we must, find specific to the legal course for recruitment" (Toyama, Jorge. Employment contracts and other institutions of labor law. Lima SA Law Gazette 2008). " Thus, this school believes that in this case the need for which the applicant is hired on a permanent and not temporary, since in any way could say "market need" from July 1, 2006 if such "activities" pre-existed in the workplace, especially if these functions are part of the maintenance and beautification of their duty to cover local governments permanently, "even if, according to the actor, and performed.
8. Therefore, this school considers the applicant's employment contract has been distorted, because it occurred the case referred to in subparagraph d) of Article 77 of Supreme Decree No. 003-97-TR, should be considered, then, as subject to an indefinite period, so that could only be fired for cause relating to your conduct or work capacity.
9. To the extent that, in this case, it is proved that the municipality located infringed the constitutional right to work of the applicant, appropriate, in accordance with Article 56 of the Code of Constitutional Procedure, to bear the court costs, which must be settled in the implementation phase of this sentence.
For these reasons, the Constitutional Court with the authority under the Constitution of Peru
RESOLVED
1. Upheld the claim because it is proved infringement of the applicant's right to work.
2. ORDERED that the District Municipality of Santiago de Surco meets Anastacio replace Rafael Javier Maldonado in office he occupied or other similar equal level or hierarchy.
published and notifíquese.
SS. MESSIAH
RAMIREZ STREET CROSS Hayen
ETO
LIMA
RAFAEL ANASTACIO
JAVIER MALDONADO
SENTENCIA DEL TRIBUNAL CONSTITUCIONAL
En Lima, a los 15 días del mes de octubre de 2010, la Sala Segunda del Tribunal Constitucional, integrada por los magistrados Mesía Ramírez, Calle Hayen y Eto Cruz, pronuncia la siguiente sentencia
ASUNTO
Recurso de agravio constitucional interpuesto por don Rafael Anastacio Javier Maldonado contra la sentencia expedida por la Segunda Sala Civil de la Corte Superior de Justicia de Lima, de fojas 339, que dismissed the demand for cars. BACKGROUND
On March 27, 2007, plaintiff brought the claim for protection against the District Municipality of Surco, seeking to rescind his dismissal, held on December 31, 2006, and has reinstatement in the position he occupied as a canal coming. States that entered service the City in March 1998 and January 2002 was hired as a worker subject to special conditions, a condition in which he worked for the Municipality through successive renewals until the date of his dismissal. Adds, however, has made since the start of the municipalities own work and not those of a temporary nature, so that from the beginning would have behaved as a laborer for an indefinite period of the entity, and not as a temporary worker, so it could not be dismissed but only for cause in his conduct or capacity, and after a procedure with all the guarantees. States that have violated their rights to due process and to work.
The City defendant answer the complaint noting that in this case there was no redundancy whatsoever but only the extinction of the link as a result of being tested within the applicant's employment contract.
The Fifty Civil Court of Lima declared founded the action, finding that notwithstanding what is stated in the contracts in this case the plaintiff was acting in practice as an employee of the municipality. The Board reversed the decision of the court and dismissed the action, finding that it should be understood that the dispute was referred to the labor and not to private groups, taking into account the date on which the applicant began providing services in the municipality defendant. BASICS
1. From the evidence submitted by the parties and their allegations, it is established that the appellant was employed as a worker subject to special conditions in January 2002 ie, when it was already amended Article 52 of Law No. 23853, which provided that municipal workers are subject to the labor of private activity.
2. Thus, having determined that the applicant was subject to the labor of private activity, and taking into account the criteria procedurability under the demands of individual labor on private foundations established in 7 to 20 STC N . º 0206-2005-PA/TC, which constitute binding precedent in this case is to assess whether the applicant has been subject to arbitrary dismissal.
§ Definition of request
3. In this case the appellant seeks to be reinstated in his job as manager canal improvement of parks and gardens in the District Municipality of Santiago de Surco, considering that it has violated their constitutional rights to freedom of work, due process and defense.
4. Contracts for temporary nature of the plaintiff and the answer to the complaint, we conclude that the plaintiff worked from January 2002 through December 31, 2006, as the canal area of \u200b\u200bimprovement of parks and gardens.
§ Analysis of the dispute
5. With respect to contract work subject to special conditions, it should be noted that this type of contract is fixed term, since it has as a justification for holding the temporary nature of casual or temporary service will be paid, ie, in determining its celebration should take into account the temporary or transitory nature of service required, because if a worker is hired through this type of contract to carry out work of a permanent nature and not temporary, or face a continuing need and not transitory, it have simulated the conclusion of a fixed-term contract, when in fact it required an indefinite.
6. Therefore, to determine whether successive instruments offered employment contracts containing temporary in nature have been simulated and thus denatured, be assumed to analyze the nature of the need for which was signed by the applicant. To that end, temporary contracts market need presented by the actor states that he was hired as canal workers taking employment as a cause of "the need of the Municipality of Santiago de Surco to meet the constant requests from neighbors about improving parks and gardens in the district, "whenever the defendant municipality" requires constant care applications neighbors on improving parks and gardens in the district "(folio 7 to 14).
7. In this regard, one can establish that "is not enough to invoke a specific causal recruitment but that this case should really be configured to proceed the temporary, or at least, we must, find specific to the legal course for recruitment" (Toyama, Jorge. Employment contracts and other institutions of labor law. Lima SA Law Gazette 2008). " Thus, this school believes that in this case the need for which the applicant is hired on a permanent and not temporary, since in any way could say "market need" from July 1, 2006 if such "activities" pre-existed in the workplace, especially if these functions are part of the maintenance and beautification of their duty to cover local governments permanently, "even if, according to the actor, and performed.
8. Therefore, this school considers the applicant's employment contract has been distorted, because it occurred the case referred to in subparagraph d) of Article 77 of Supreme Decree No. 003-97-TR, should be considered, then, as subject to an indefinite period, so that could only be fired for cause relating to your conduct or work capacity.
9. To the extent that, in this case, it is proved that the municipality located infringed the constitutional right to work of the applicant, appropriate, in accordance with Article 56 of the Code of Constitutional Procedure, to bear the court costs, which must be settled in the implementation phase of this sentence.
For these reasons, the Constitutional Court with the authority under the Constitution of Peru
RESOLVED
1. Upheld the claim because it is proved infringement of the applicant's right to work.
2. ORDERED that the District Municipality of Santiago de Surco meets Anastacio replace Rafael Javier Maldonado in office he occupied or other similar equal level or hierarchy.
published and notifíquese.
SS. MESSIAH
RAMIREZ STREET CROSS Hayen
ETO
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