EXP.
No. HUANUCO
02612-2010-PA/TC
JOSHUA YEMEL
Pasquel JUSTINIANO
JUDGEMENT OF THE CONSTITUTIONAL COURT
In Lima, the 20 th day of October 2010 the First Chamber of the Constitutional Court, composed of Judges Callirgos Beaumont, Hayen and Eto Cross Street, made the following statement
SUBJECT Appeal
constitutional tort action against the ruling issued by the Civil Chamber of the Superior Court of Justice in Huánuco, folio 148, the date June 14, 2010, which dismissed the claim for protection here.
BACKGROUND On January 15, 2010, plaintiff brought the claim for protection against Amarilis District Municipality, asking that it rescind the dismissal uncaused that has been, and that Thus, it replace in his job. Is that the date of termination had passed the trial period, it signed lease services and that although the employment relationship was subject to the rules of private activity in his capacity as municipal workers, has been the victim of a groundless dismissal because he said no just cause for dismissal.
The Second Joint Court of Huanuco, dated April 29, 2010, upheld in part the claim, finding that the claimant performed work of a permanent nature and the employment relationship was summoned, in spite of which was dismissed without explanation.
reviewing
The Board, reversing the appeal, dismissed the action, finding that the claim presented must be elucidated through the appropriate process in the ordinary way. BASICS
According to the procedural criteria established in the STC 0206-2005-PA/TC constitutional jurisdiction to hear cases is suitable in denouncing the existence of an uncaused dismissal, as in this case.
At issue is limited to determining whether the appellant was or employment relationship with the summoned, and from this fact whether his dismissal was set.
The plaintiff began providing services to the respondent company on 1 November 2008, through the lease of services in page 3, the same was renewed monthly until the last contract on pages 27, due on December 31, 2009, as evidenced by copies fedateadas that work on pages 6 to folios 28.
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, the same as, as pointed out by the Collegiate, is implicit in our legal system Legal and specifically imposed by the aforementioned protective nature of our Constitution, he said, in Case No. 1944-2002-AA/TC, that by this principle "(...) in the event of discrepancies between what happens in practice and what flows of documents should be preferred to the former, that is, to what happens in the realm of facts "(principle 3).
With the contracts on pages 3 to 28, the inspection report on pages 42 to 47, the Evidence of Work on pages 34, Memorandum No. 363-2008-MDA/GSC-CSC, on pages 29, proves conclusively that the appellant worked as a janitor service, permanent work in local government, and must therefore be concluded, that the applicant had a professional relationship with the civil work and not the summoned, in spite of which involved a simulated civil contract.
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, what has not happened in this case, why has suffered from arbitrary dismissal, that violated their right to work, therefore, be regarded as demand.
As in this case has established that the site has violated the constitutional right to work of the applicant, it is in accordance with Article 56. No Constitutional Procedural Code, order only the payment of court costs, which must be settled at the stage of implementation of this decision.
For these reasons, the Constitutional Court with the authority under the Constitution of Peru,
RESOLVED
upheld the claim because it has established the infringement of right to work and consequently , NULL arbitrary dismissal that the plaintiff has been
to restore the situation prior to the violation of right to work, is directed to the District Municipality of Amarilis you replace Don Josue Justiniano Pasquel Yemen in the same position work or other similar level within two business days, with payment of court costs.
published and notifĂquese.
SS. BEAUMONT
Callirgos
ETO STREET CROSS Hayen
No. HUANUCO
02612-2010-PA/TC
JOSHUA YEMEL
Pasquel JUSTINIANO
JUDGEMENT OF THE CONSTITUTIONAL COURT
In Lima, the 20 th day of October 2010 the First Chamber of the Constitutional Court, composed of Judges Callirgos Beaumont, Hayen and Eto Cross Street, made the following statement
SUBJECT Appeal
constitutional tort action against the ruling issued by the Civil Chamber of the Superior Court of Justice in Huánuco, folio 148, the date June 14, 2010, which dismissed the claim for protection here.
BACKGROUND On January 15, 2010, plaintiff brought the claim for protection against Amarilis District Municipality, asking that it rescind the dismissal uncaused that has been, and that Thus, it replace in his job. Is that the date of termination had passed the trial period, it signed lease services and that although the employment relationship was subject to the rules of private activity in his capacity as municipal workers, has been the victim of a groundless dismissal because he said no just cause for dismissal.
The Second Joint Court of Huanuco, dated April 29, 2010, upheld in part the claim, finding that the claimant performed work of a permanent nature and the employment relationship was summoned, in spite of which was dismissed without explanation.
reviewing
The Board, reversing the appeal, dismissed the action, finding that the claim presented must be elucidated through the appropriate process in the ordinary way. BASICS
According to the procedural criteria established in the STC 0206-2005-PA/TC constitutional jurisdiction to hear cases is suitable in denouncing the existence of an uncaused dismissal, as in this case.
At issue is limited to determining whether the appellant was or employment relationship with the summoned, and from this fact whether his dismissal was set.
The plaintiff began providing services to the respondent company on 1 November 2008, through the lease of services in page 3, the same was renewed monthly until the last contract on pages 27, due on December 31, 2009, as evidenced by copies fedateadas that work on pages 6 to folios 28.
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, the same as, as pointed out by the Collegiate, is implicit in our legal system Legal and specifically imposed by the aforementioned protective nature of our Constitution, he said, in Case No. 1944-2002-AA/TC, that by this principle "(...) in the event of discrepancies between what happens in practice and what flows of documents should be preferred to the former, that is, to what happens in the realm of facts "(principle 3).
With the contracts on pages 3 to 28, the inspection report on pages 42 to 47, the Evidence of Work on pages 34, Memorandum No. 363-2008-MDA/GSC-CSC, on pages 29, proves conclusively that the appellant worked as a janitor service, permanent work in local government, and must therefore be concluded, that the applicant had a professional relationship with the civil work and not the summoned, in spite of which involved a simulated civil contract.
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, what has not happened in this case, why has suffered from arbitrary dismissal, that violated their right to work, therefore, be regarded as demand.
As in this case has established that the site has violated the constitutional right to work of the applicant, it is in accordance with Article 56. No Constitutional Procedural Code, order only the payment of court costs, which must be settled at the stage of implementation of this decision.
For these reasons, the Constitutional Court with the authority under the Constitution of Peru,
RESOLVED
upheld the claim because it has established the infringement of right to work and consequently , NULL arbitrary dismissal that the plaintiff has been
to restore the situation prior to the violation of right to work, is directed to the District Municipality of Amarilis you replace Don Josue Justiniano Pasquel Yemen in the same position work or other similar level within two business days, with payment of court costs.
published and notifĂquese.
SS. BEAUMONT
Callirgos
ETO STREET CROSS Hayen
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