EXP.
No. PIURA
03191-2010-PA/TC
FREDY RONALD
Arruda
Silupu
JUDGEMENT OF THE CONSTITUTIONAL COURT
In Lima, on the 7th day of October 2010, the First Chamber of the Constitutional Court, composed of Judges Callirgos Beaumont, Hayen and Eto Cross Street, utters the following sentence
SUBJECT
constitutional tort
Appeal lodged by Mr. Fredy Ronald Arrunátegui Silupu against the decision issued by the First Civil Chamber of the Superior Court of Justice of Piura, on pages 160, its dated 19 July 2010, which dismissed the claim for protection here. BACKGROUND
On November 30, 2009, plaintiff brought the claim for protection against the Provincial Municipality of Piura, requesting an order to refrain summoned to dismiss him in office if not for just cause under the law. The applicant states that he served in the position of Driver Public Safety Management and Municipal Control under the subscription service contracts by third parties, which had been denatured, as in fact performing a work of permanent nature, and Therefore, given that his contract expires on December 31, 2009, the imminent threat of violation of their right to work, it would be subject to arbitrary dismissal.
The formula
located exceptions of non-exhaustion of administrative and lack of standing of the defendant, and answer the complaint requesting that it declare inadmissible or unfounded, as it only remained with the plaintiff a contractual relationship of a civil nature and not labor. Points to the site that entry to the Civil Service should be done necessarily by public competition, so not being the case the appellant, the claim must be dismissed.
The Third Civil Court of Piura, dated April 13, 2010, upheld the action, finding that the plaintiff has been the subject of groundless dismissal, and ordered reinstatement in the post he occupied.
reviewing
The Board revoked the appeal, and reforming it, dismissed the claim, holding that the dispute had to be settled in the way of administrative litigation process. BASICS
1. The petition aims to stop the imminent threat consisting of arbitrary dismissal which the applicant would be subject to the expiration of its contract services for third on 31 December 2009, although in fact maintained a working relationship of indeterminate nature.
2. From the record it is noted that the date this court assume jurisdiction over this controversy has produced a cessation of the functions of the applicant, so that attention to the criteria of procedurability under the demands of individual labor on private foundations established in the previous 7 to 20 of 0206 -2005-PA/TC (Article VII of the Preliminary Constitutional Procedural Code), the Court considers that in this case is to assess whether the applicant has been subject to arbitrary dismissal.
3. In the present case must determine whether the principle of the primacy of reality, the provision of recurring services performed under the contract signing Third party services can be considered within the scope of a contract of indefinite duration, because if so, the applicant could only be fired for just cause under the law.
4. Thus, to determine the nature of the services provided by the applicant to the municipality situated, it must apply the principle of the primacy of reality, which, as pointed out by the Collegiate, is implicit in our legal system and, in particular, imposed by the aforementioned protective nature of our Constitution, setting out in the STC No. 1944-2002-AA/TC, that by this principle "(...) in cases of discrepancy between what happens in practice and what flows from the documents, should be preferred to the former, that is, to what happens in the realm of facts "(principle 3).
5. With proof of payment on pages 4-9 and Report No. 025-2010-CCHC-USA.OL./MPP, dated January 1, 2010 (f. 140), it is shown that the plaintiff worked for the summoned from May 1 until December 31, 2009, which at present has not been rebutted by the defendant. Also, those documents and the Memorandum No. 754-2009-GSECOM/MPP, dated October 26, 2009 (f. 3), it is undisputed that the appellant made a security officer jobs dependent of Security Management and Control, among others, Municipal, personally, under subordination and received a monthly remuneration for work performed and must therefore be concluded, that the plaintiff had a working relationship with the located character, despite what which simulated a civil contract.
6. In this regard, and having established the existence of an employment relationship with the site, the applicant could only be fired for just cause for dismissal related to his conduct or work performance, which has not happened in this case, why This has been a victim of unfair dismissal, that violated their right to work; therefore be estimated demand.
For these reasons, the Constitutional Court with the authority under the Constitution of Peru
RESOLVED
1. Upheld the claim for protection, for having established the infringement of the applicant's right to work.
2. ORDERED that the Provincial Municipality of Piura replace Don Frederick Ronald Arrunátegui Silupu in the same job or another of equal or similar level, with a warning that the enforcement judge to apply the enforcement measures under Article 22. No. Code Constitutional Litigation.
published and notifíquese.
SS. BEAUMONT
Callirgos
ETO STREET CROSS Hayen
No. PIURA
03191-2010-PA/TC
FREDY RONALD
Arruda
Silupu
JUDGEMENT OF THE CONSTITUTIONAL COURT
In Lima, on the 7th day of October 2010, the First Chamber of the Constitutional Court, composed of Judges Callirgos Beaumont, Hayen and Eto Cross Street, utters the following sentence
SUBJECT
constitutional tort
Appeal lodged by Mr. Fredy Ronald Arrunátegui Silupu against the decision issued by the First Civil Chamber of the Superior Court of Justice of Piura, on pages 160, its dated 19 July 2010, which dismissed the claim for protection here. BACKGROUND
On November 30, 2009, plaintiff brought the claim for protection against the Provincial Municipality of Piura, requesting an order to refrain summoned to dismiss him in office if not for just cause under the law. The applicant states that he served in the position of Driver Public Safety Management and Municipal Control under the subscription service contracts by third parties, which had been denatured, as in fact performing a work of permanent nature, and Therefore, given that his contract expires on December 31, 2009, the imminent threat of violation of their right to work, it would be subject to arbitrary dismissal.
The formula
located exceptions of non-exhaustion of administrative and lack of standing of the defendant, and answer the complaint requesting that it declare inadmissible or unfounded, as it only remained with the plaintiff a contractual relationship of a civil nature and not labor. Points to the site that entry to the Civil Service should be done necessarily by public competition, so not being the case the appellant, the claim must be dismissed.
The Third Civil Court of Piura, dated April 13, 2010, upheld the action, finding that the plaintiff has been the subject of groundless dismissal, and ordered reinstatement in the post he occupied.
reviewing
The Board revoked the appeal, and reforming it, dismissed the claim, holding that the dispute had to be settled in the way of administrative litigation process. BASICS
1. The petition aims to stop the imminent threat consisting of arbitrary dismissal which the applicant would be subject to the expiration of its contract services for third on 31 December 2009, although in fact maintained a working relationship of indeterminate nature.
2. From the record it is noted that the date this court assume jurisdiction over this controversy has produced a cessation of the functions of the applicant, so that attention to the criteria of procedurability under the demands of individual labor on private foundations established in the previous 7 to 20 of 0206 -2005-PA/TC (Article VII of the Preliminary Constitutional Procedural Code), the Court considers that in this case is to assess whether the applicant has been subject to arbitrary dismissal.
3. In the present case must determine whether the principle of the primacy of reality, the provision of recurring services performed under the contract signing Third party services can be considered within the scope of a contract of indefinite duration, because if so, the applicant could only be fired for just cause under the law.
4. Thus, to determine the nature of the services provided by the applicant to the municipality situated, it must apply the principle of the primacy of reality, which, as pointed out by the Collegiate, is implicit in our legal system and, in particular, imposed by the aforementioned protective nature of our Constitution, setting out in the STC No. 1944-2002-AA/TC, that by this principle "(...) in cases of discrepancy between what happens in practice and what flows from the documents, should be preferred to the former, that is, to what happens in the realm of facts "(principle 3).
5. With proof of payment on pages 4-9 and Report No. 025-2010-CCHC-USA.OL./MPP, dated January 1, 2010 (f. 140), it is shown that the plaintiff worked for the summoned from May 1 until December 31, 2009, which at present has not been rebutted by the defendant. Also, those documents and the Memorandum No. 754-2009-GSECOM/MPP, dated October 26, 2009 (f. 3), it is undisputed that the appellant made a security officer jobs dependent of Security Management and Control, among others, Municipal, personally, under subordination and received a monthly remuneration for work performed and must therefore be concluded, that the plaintiff had a working relationship with the located character, despite what which simulated a civil contract.
6. In this regard, and having established the existence of an employment relationship with the site, the applicant could only be fired for just cause for dismissal related to his conduct or work performance, which has not happened in this case, why This has been a victim of unfair dismissal, that violated their right to work; therefore be estimated demand.
For these reasons, the Constitutional Court with the authority under the Constitution of Peru
RESOLVED
1. Upheld the claim for protection, for having established the infringement of the applicant's right to work.
2. ORDERED that the Provincial Municipality of Piura replace Don Frederick Ronald Arrunátegui Silupu in the same job or another of equal or similar level, with a warning that the enforcement judge to apply the enforcement measures under Article 22. No. Code Constitutional Litigation.
published and notifíquese.
SS. BEAUMONT
Callirgos
ETO STREET CROSS Hayen
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