EXP.
No. PIURA
03018-2010-PA/TC
ELIAS JOSÉ LUIS
ARICA AND OTHER
JUDGEMENT OF THE 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
Appeal constitutional tort brought by José Luis Elías Arica and another against the decision issued by the Second Civil Chamber of the Superior Court of Justice of Piura, on pages 163, the date July 14, 2010, which dismissed the demand for cars. BACKGROUND
On December 22, 2009 the plaintiffs brought demands for protection against the Provincial Municipality of Piura asking that it rescind the charters and 489-2009-OL/MPP No. 490-2009 s -OL/MPP, laying them of the expiration of their contracts and their non-renewal, which is certain and imminent threat and that the defendant be ordered to refrain from cesarlos in office workers Public Cleaning. Initially referred to the defendant labored through non-personal service contracts, those contracts were indeed working, then, by administrative service contracts, the February 2, 2009 to December 31, 2009, and who worked under subordination and dependency, so they are ineffective administrative services contracts (CAS).
The demand answers located stating that the actor was hired by CAS, in accordance with Legislative Decree 1057, for a specified period of February 2, 2009 to December 31, 2009, and before the expiration of the term were informed that their contracts would not be extended, in the absence violated any law because the actors had no job security. Also refers to the date the actors and not provide services in the municipality.
The Third Civil Court of Piura, dated April 12, 2010, states established the action, finding that work has established the character of the services provided by the actors, being so applicable to Legislative Decree No. 728 .
The superior authority to revoke the appeal and declared inadmissible, finding that the dispute should be resolved in a judicial process, in accordance with Article 121 of the Code of Civil Procedure. BASICS
§. Hometown demand
1. This application seeks an order requiring the reinstatement of the plaintiffs in the position he occupied, having been subject to arbitrary dismissal. It is alleged that the plaintiffs, despite having signed lease agreements for services, in fact served under an indefinite-term employment relationship.
2. For its part, the part located notes that the applicants were not dismissed arbitrarily, but they beat the deadline of its recent procurement for services was extinguished their contractual relationships.
3. Of 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 applicants have 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 plaintiffs 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 procurement for services which are contained on pages 7 to 10, demonstrated that the plaintiffs have maintained a fixed-term employment relationship, which ended on the expiry of the contract. Therefore, having completed the term of that contract, termination of employment of the applicants came 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 plaintiffs 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
03018-2010-PA/TC
ELIAS JOSÉ LUIS
ARICA AND OTHER
JUDGEMENT OF THE 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
Appeal constitutional tort brought by José Luis Elías Arica and another against the decision issued by the Second Civil Chamber of the Superior Court of Justice of Piura, on pages 163, the date July 14, 2010, which dismissed the demand for cars. BACKGROUND
On December 22, 2009 the plaintiffs brought demands for protection against the Provincial Municipality of Piura asking that it rescind the charters and 489-2009-OL/MPP No. 490-2009 s -OL/MPP, laying them of the expiration of their contracts and their non-renewal, which is certain and imminent threat and that the defendant be ordered to refrain from cesarlos in office workers Public Cleaning. Initially referred to the defendant labored through non-personal service contracts, those contracts were indeed working, then, by administrative service contracts, the February 2, 2009 to December 31, 2009, and who worked under subordination and dependency, so they are ineffective administrative services contracts (CAS).
The demand answers located stating that the actor was hired by CAS, in accordance with Legislative Decree 1057, for a specified period of February 2, 2009 to December 31, 2009, and before the expiration of the term were informed that their contracts would not be extended, in the absence violated any law because the actors had no job security. Also refers to the date the actors and not provide services in the municipality.
The Third Civil Court of Piura, dated April 12, 2010, states established the action, finding that work has established the character of the services provided by the actors, being so applicable to Legislative Decree No. 728 .
The superior authority to revoke the appeal and declared inadmissible, finding that the dispute should be resolved in a judicial process, in accordance with Article 121 of the Code of Civil Procedure. BASICS
§. Hometown demand
1. This application seeks an order requiring the reinstatement of the plaintiffs in the position he occupied, having been subject to arbitrary dismissal. It is alleged that the plaintiffs, despite having signed lease agreements for services, in fact served under an indefinite-term employment relationship.
2. For its part, the part located notes that the applicants were not dismissed arbitrarily, but they beat the deadline of its recent procurement for services was extinguished their contractual relationships.
3. Of 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 applicants have 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 plaintiffs 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 procurement for services which are contained on pages 7 to 10, demonstrated that the plaintiffs have maintained a fixed-term employment relationship, which ended on the expiry of the contract. Therefore, having completed the term of that contract, termination of employment of the applicants came 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 plaintiffs 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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