EXP.
No. PIURA
02284-2010-PA/TC
WALTER COLUPU
Purizaca
JUDGEMENT OF THE CONSTITUTIONAL COURT
In Lima, on the 4th day of November 2010, the Board Two of the Constitutional Court, composed of Judges Vergara Gotelli, Alvarez Miranda and Urviola Hani, made the following statement
SUBJECT Constitutional tort remedy lodged by Mr. Walter Colupu Purizaca against the decision issued by the Second Chamber in Civil Superior Court of Justice of Piura, on folio 132, dated May 14, 2010, which dismissed the demand for cars . BACKGROUND
On January 6, 2010 the plaintiff brought claim for protection against the Provincial Municipality of Piura requesting his reinstatement in the position he occupied as a gardener and cleaning workers of the Municipality defendant. He reports that he has worked since September 2007 and that notwithstanding what is stated in the contracts in fact served as an employee of the entity, serving in a relationship of dependence and subordination, subject to working hours and receive remuneration in return to work, so could not be stopped but only for cause in their behavior or their ability to work, so in this case was groundless dismissal, in breach of their right to work and due process.
The Public Prosecutor demanded the municipality proposed exception to the exhaustion of administrative review, and answer the complaint noting that the issue be settled in the appropriate way for judicial process and that the applicant does not hold a working relationship with the respondent company, adding that the applicant served under contract administrative services, so that the termination was the result of having verified the date of termination of the contract and not because of any dismissal, there being no breach of constitutional law one of the plaintiff.
Fifth Special Civil Court of Piura, dated February 11, 2010, declared unfounded the objection raised, and dated March 18, 2010, declare the petition on the grounds that the claimant was subject to a special form, such as administrative service contract, so it is not for estimating the demand.
The Board revoked the appeal and dismissed the action, finding that the issue lies be elucidated in the way of administrative litigation process.
§. Hometown demand
1. This application seeks to order the reinstatement of the plaintiff in the position he occupied, having been subject to arbitrary dismissal. It is alleged that the plaintiff, despite having signed lease agreements for services, in fact served under an 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 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, civil contracts signed the applicant were denatured, as if this had happened, that would constitute a fraud situation independent period of start of contract administrative services, which is constitutional.
5. Precision made above, it is noted that the contract administrative services which are contained on pages 33, 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 complainant produced automatically, 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 Court Constitutional, 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
02284-2010-PA/TC
WALTER COLUPU
Purizaca
JUDGEMENT OF THE CONSTITUTIONAL COURT
In Lima, on the 4th day of November 2010, the Board Two of the Constitutional Court, composed of Judges Vergara Gotelli, Alvarez Miranda and Urviola Hani, made the following statement
SUBJECT Constitutional tort remedy lodged by Mr. Walter Colupu Purizaca against the decision issued by the Second Chamber in Civil Superior Court of Justice of Piura, on folio 132, dated May 14, 2010, which dismissed the demand for cars . BACKGROUND
On January 6, 2010 the plaintiff brought claim for protection against the Provincial Municipality of Piura requesting his reinstatement in the position he occupied as a gardener and cleaning workers of the Municipality defendant. He reports that he has worked since September 2007 and that notwithstanding what is stated in the contracts in fact served as an employee of the entity, serving in a relationship of dependence and subordination, subject to working hours and receive remuneration in return to work, so could not be stopped but only for cause in their behavior or their ability to work, so in this case was groundless dismissal, in breach of their right to work and due process.
The Public Prosecutor demanded the municipality proposed exception to the exhaustion of administrative review, and answer the complaint noting that the issue be settled in the appropriate way for judicial process and that the applicant does not hold a working relationship with the respondent company, adding that the applicant served under contract administrative services, so that the termination was the result of having verified the date of termination of the contract and not because of any dismissal, there being no breach of constitutional law one of the plaintiff.
Fifth Special Civil Court of Piura, dated February 11, 2010, declared unfounded the objection raised, and dated March 18, 2010, declare the petition on the grounds that the claimant was subject to a special form, such as administrative service contract, so it is not for estimating the demand.
The Board revoked the appeal and dismissed the action, finding that the issue lies be elucidated in the way of administrative litigation process.
§. Hometown demand
1. This application seeks to order the reinstatement of the plaintiff in the position he occupied, having been subject to arbitrary dismissal. It is alleged that the plaintiff, despite having signed lease agreements for services, in fact served under an 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 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, civil contracts signed the applicant were denatured, as if this had happened, that would constitute a fraud situation independent period of start of contract administrative services, which is constitutional.
5. Precision made above, it is noted that the contract administrative services which are contained on pages 33, 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 complainant produced automatically, 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 Court Constitutional, 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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