Press Release No. TC 107-2010-OII/TC
ACCURATE INTERPRETATION OF RULES GOVERNING THE CONTRACT ADMINISTRATIVE SERVICES (CAS)
The Constitutional Court (TC) decided to declare that constitutional interpretation of paragraph 13.3 of Supreme Decree 075-2008-PCM, for Administrative Services Contracts is as follows:
"If the dismissal occurs for wrongful dismissal, the employer has automatically required to pay workers' compensation equivalent to the remuneration not received, up to a maximum amount equal to two months. If the employer does not automatically pay compensation, the employee may file the corresponding application.
If the worker believes he has not committed the alleged unlawful dismissal or behind it is a penalty disproportionate, may file a lawsuit asking to be paid compensation equivalent to the wages not received, up to a maximum of two (2) months. "
This interpretation is consistent with the principle-value of human dignity human recognized in article 1 of the Constitution which impose the worker who is fired without justification to initiate a process to be granted compensation, is tantamount to an unnecessary burden that is justified objectively. This is available TC to declare the petition for habeas corpus filed against COFOPRI, contained in File No. 03818-2009-AA/TC.
In the case of special labor regime Administrative Services Agreement also under process would effectively make restitution. However, this efficacy for recovery can not be predicated on the protection process because it would distort the essence of the Contract Administrative Services, as this is a special employment and transitional regime which aims to begin the process of reform and reorganization of the civil service.
In this case, the Contract Administrative Services (CAS) and its amendments, on the record, demonstrates that the applicant has maintained a fixed-term employment relationship, which ended at the expiration of the last addendum. 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. This being so, it must be concluded that the termination of employment of the plaintiff does not affect any constitutional right, so the demand can not be upheld.
Lima, October 14, 2010
OFFICE OF INSTITUTIONAL IMAGE
EXP. No.
03818-2009-PA/TC SAN MARTÍN
LEAL ROY MARDEN
MAYTAHUARI
JUDGEMENT OF THE CONSTITUTIONAL COURT
In Lima, 12 days of October 2010, the First Chamber of the Constitutional Court, composed of Judges Street Hayen, Alvarez Miranda and Urviola Hani, made the following statement
SUBJECT
constitutional tort
Appeal lodged by Mr. Roy Marden Leal Maytahuari against the decision issued by the Second Decentralized Joint Superior Court of San Martín, on pages 390, date June 12, 2009, which dismissed the demand for cars. BACKGROUND
On November 6 2008, the plaintiff brought claim for protection against the Agency for the Formalization of Informal Property (COFOPRI) of San Martín, asking that it rescind the arbitrary dismissal has been, and that, therefore, is to replace his position verification techniques. He reports that he has worked through successive service lease, which has carried out work of a permanent nature, subject to working hours under subordination and dependence, from the August 1, 2001 until October 1, 2008. Additionally, requests that the defendant is inhibited from acts of hostility on pain of being denounced his legal representative. The
COFOPRI seized answer the complaint alleging that the applicant for administrative services under contracts for services from July 1, 2008 until expiration of the last one, on 30 September 2008, therefore, the appropriate process to resolve the dispute is the administrative litigation process.
The Public Prosecutor in charge of judicial affairs at the Ministry of Housing, Construction and Sanitation showed up, arguing that the documents submitted by the applicant is patently clear that non-personal services provided and that its regulation is under the Code Civil.
The Mixed Court of Tarapoto, dated 31 March 2009, states founded whereas demand in application of the principle of primacy of the fact the plaintiff had a working relationship with the COFOPRI, and therefore, administrative services contracts held were worthless.
reviewing
The Board, reversing the appeal, declared inadmissible, considering that to resolve the claim is necessary probation station, adding that the applicant has initiated a process for appeal of arbitrary dismissal. BASICS
§. Merits of the application and definition of the dispute
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 reality served under an employment relationship.
2. For its part, the part located states that the applicant was not dismissed arbitrarily, but at the expiration of his last contract administrative services are extinguished their respective contractual relationship.
3. From the arguments of the parties and in accordance with criteria of provenance in the binding precedent 00206-2005-PA/TC STC, we conclude in this case it is necessary to assess whether the applicant has been subject to arbitrary dismissal.
To determine this, an analysis of adequate protection must be afforded to workers in special employment scheme of the administrative contract services against unfair dismissal under the sentence passed in Exp No. 00002-2010 - PI / TC.
§. Adequate protection against arbitrary dismissal in the employment system of special administrative contract services
4. Before coming to assess the merits of a dispute should be noted that in Exp No. 00002-2010-PI/TC issued an interpretive statement in which it was stated that the Legislative Decree No. 1057 was constitutional, for the following reasons: a.
It is a special labor regime, because it recognizes all individual employment rights proclaimed in the Constitution in favor of workers, despite the rating assigned by the legislature delegate. B.
The rights and benefits that recognizes the administrative contract services such as special working arrangements do not violate the principle of equal right-with the treatment offered by the public employment regime and the private sector status, since all three have different treatment regimens that characterized and are objectively justified and reasonable.
5. Clarifications made above, it should be noted also that the base 17 of the STC 00002-2010-PI/TC, the Court stressed that the mere signing of contract administrative services generates the existence of an employment relationship.
result, no interest to pursue a claim in order to determine that, in the reality of the facts, the administrative services contract is a contract of employment, since it has been determined in Case mentioned unconstitutional, it has to be obeyed, followed and respected by all organs of public administration.
similar effect should be emphasized that from 21 September 2010, no judge of the judiciary or national Administrative Tribunal attached to the Executive may disapply the Legislative Decree No. 1057, because its constitutionality has been confirmed by the sentence handed down in the 00002-2010-PI/TC No. Exp. This is because they have the second paragraph of Article VI of the Preliminary Title and Article 82 º of CPConst. As well as the First General Arrangement of the Organic Law of the Constitutional Court.
6. These findings are that this Court established that under the process is unnecessary and irrelevant to ascertain whether prior to signing the contract administrative services, the applicant had served undercover job content through civil contracts, as in the case that this would occurred, the situation of fraud is an independent period of start of contract administrative services, which is constitutional. Therefore, this situation would have been spoiled and novada with one subscription service of the administrative contract.
7. Moreover, an analysis of the scope of the right to adequate protection against arbitrary dismissal in particular the contract labor system administrative services. To this end, we begin by recalling that the STC 00976-2001-AA/TC, the Court defined the content of that constitutional right and interpreted what constitutes adequate protection against arbitrary dismissal. Indeed, in the sentence above was stated that: a.
The right to adequate protection against arbitrary dismissal recognized in Article 27 of the Constitution can be approached from two perspectives: i) a scheme of a substantive nature, and ii) a system of judicial procedure. Substantive regime against arbitrary dismissal may be: i) preventive, or ii) to seek redress. While the procedural protection scheme can be: i) efficacy damages, or ii) restorative effectiveness.
On the constitutionality of the procedures adequate protection against arbitrary dismissal, it noted that the STC 00976-2001-AA/TC this Court stated that the establishment of a substantive regime is not incompatible with the option of the same legislature establish, simultaneously, a procedural system, ie both protection schemes are compatible with Article 27 of the Constitution. B.
The scheme noun-preventive protection against arbitrary dismissal is that the legislature intended to prevent, avoid or prevent a worker can be fired arbitrarily, ie, which calls for using a standard range of law provides that you can not arbitrarily dismiss a worker if it is not any grounds and in so far as it proved, after disciplinary proceedings, if necessary.
In the case of special labor regime of contract administrative services, this system of noun-preventive protection is provided for in subparagraph f) of paragraph 13.1 of Supreme Decree 075-2008-PCM, which reads the contract administrative services may terminated by:
"unilateral decision of the contracting entity, based on the unjustified breach of the obligations under the contract or failure in fulfilling the tasks assigned."
In this case of termination of contract administrative services, paragraph 13.2 of Supreme Decree 075-2008-PCM provides a procedure prior to dismissal in the following sense:
"In the case of item f) of paragraph 13.1 above the contracting entity shall charge to the contract by a notification failure. The contract has a term of five (5) working days express what they wish. Expiration of that period the entity has to decide in a reasoned and based on the criteria of reasonableness and proportionality, whether resolved or not the contract, informing the contract. "
Bearing in mind the contents of articles transcribed, the Court concludes that the substantive protection regime, preventive service management contract is consistent with the Constitution. In any case, it should be noted that the terms "contract" and "meets or not the contract" in paragraph 13.2 of Supreme Decree 075-2008-PCM must be understood as "worker" and "extinguished or not the contract."
c. The substantive protection system-repairing materializes when a regulation having the force of law does not prevent arbitrary dismissal occurs, but is limited to repairing patrimonial consequences. Under the STC 00976-2001-AA/TC, the substantive protection regime-repair is compatible with the Constitution if an employee was fired after arbitrarily primed "ordinary legal action in order to qualify the dismissal as unjustified, for the purpose of requiring the employer to pay such compensation compulsive. "
This system of adequate protection is provided for in section 13.3 Supreme Decree No. 075-2008-PCM, which provides that:
"When the administrative contract for services is determined by the public entity, unilaterally and without breach of contract, the judge may impose a penalty equal to the consideration not received, up to a maximum of two (2) months. "
Article transcript shows that the special labor regime of administrative services contract provides substantive protection regime, which has an effective repair for damages that is compatible with adequate protection provided by Article 27 of the Constitution against arbitrary dismissal. In any case, it should be noted that the term "solved" and "hired" in paragraph 13.3 of Supreme Decree 075-2008-PCM must be understood as "extinct" and "worker."
Court also should stipulate that constitutional interpretation of paragraph 13.3 of Supreme Decree 075-2008-PCM must be:
"If the dismissal occurs for wrongful dismissal, the employer has automatically required to pay workers' compensation equivalent to the remuneration not received, up to a maximum of two months. If the employer does not automatically pay compensation, the employee may file the corresponding application.
If the worker believes he has not committed the alleged unlawful dismissal or behind it constitutes a disproportionate penalty, may file a lawsuit asking to be paid compensation equivalent to the wages not received, up to a maximum of two (2) months. "
The interpretation is consistent with the principle-value human dignity enshrined in Article 1 of the Constitution which impose the worker is fired unreasonably to initiate a process to be granted compensation, is tantamount to an unnecessary burden that is not objectively justified. D.
In the STC 00976-2001-AA/TC also stated that the process is a procedural regime under adequate protection for recovery efficiency that is aimed at replacing the worker to his place of work and can not be understood, in the case of workers under the private regime, limited only by Legislative Decree No. 728, but in the face of the whole legal system, because this is not an aggregation chaotic laws, but one based on features consistency and integrity.
This consideration can be inferred that in the case of special labor regime of contract administrative services are also under process would effectively make restitution. However, this efficacy for recovery can not be predicated on the protection process because it would distort the essence of the contract administrative services, as this is a special employment and transitional regime which aims to begin the process of reform and reorganization of the civil service.
The replacement solution would distort the essence and temporary special administrative services contract, because contracts Work on this scheme are given period and not for an indefinite period. Moreover, under paragraph d) of Article 7 of the Additional Protocol to the American Convention on Human Rights in the Area of \u200b\u200bEconomic, Social and Cultural Rights, in cases of unjustified dismissal, the employee is entitled to compensation or reinstatement in employment or any other benefits provided by national legislation.
result, the special labor regime of administrative services contract is not covered by the procedural system for recovery efficiency (reinstatement on the job), but only the procedural system restorative efficiency (compensation).
§. Case Analysis
8. As we have stated in previous foundations, not for analysis in this process if prior to the signing of contract administrative services, civil contracts signed the applicant were denatured.
9. In this case, the contract administrative services and additional terms which are contained on pages 180 to 190, it is demonstrated that the applicant has maintained a fixed-term employment relationship, which ended at the expiration of the last rider. Therefore, having completed the term of that agreement, the termination of the employment relationship of the applicant produced automatically, as noted by the letter h) of paragraph 13.1 of Supreme Decree 075-2008-PCM.
being so, it must be 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 Constitutional Court with the authority under the Constitution of Peru
RESOLVED
1. Declare the petition, because it is not established infringement of the rights claimed.
2. Declare that the constitutional interpretation of paragraph 13.3 of Supreme Decree 075-2008-PCM is:
"If the dismissal occurs for wrongful dismissal, the employer is required to automatically pay the worker compensation equivalent to remuneration not received, up to a maximum amount equal to two months. If the employer does not automatically pay compensation, the employee may file the corresponding application.
If the worker believes he has not committed the alleged unlawful act supporting its dismissal or it constitutes a disproportionate penalty, may file a lawsuit asking to be paid compensation equivalent to the wages not received, up to a maximum of two (2) months. "
published and notifíquese.
SS.
STREET MIRANDA ALVAREZ Hayen
URVIOLA HANI
ACCURATE INTERPRETATION OF RULES GOVERNING THE CONTRACT ADMINISTRATIVE SERVICES (CAS)
The Constitutional Court (TC) decided to declare that constitutional interpretation of paragraph 13.3 of Supreme Decree 075-2008-PCM, for Administrative Services Contracts is as follows:
"If the dismissal occurs for wrongful dismissal, the employer has automatically required to pay workers' compensation equivalent to the remuneration not received, up to a maximum amount equal to two months. If the employer does not automatically pay compensation, the employee may file the corresponding application.
If the worker believes he has not committed the alleged unlawful dismissal or behind it is a penalty disproportionate, may file a lawsuit asking to be paid compensation equivalent to the wages not received, up to a maximum of two (2) months. "
This interpretation is consistent with the principle-value of human dignity human recognized in article 1 of the Constitution which impose the worker who is fired without justification to initiate a process to be granted compensation, is tantamount to an unnecessary burden that is justified objectively. This is available TC to declare the petition for habeas corpus filed against COFOPRI, contained in File No. 03818-2009-AA/TC.
In the case of special labor regime Administrative Services Agreement also under process would effectively make restitution. However, this efficacy for recovery can not be predicated on the protection process because it would distort the essence of the Contract Administrative Services, as this is a special employment and transitional regime which aims to begin the process of reform and reorganization of the civil service.
In this case, the Contract Administrative Services (CAS) and its amendments, on the record, demonstrates that the applicant has maintained a fixed-term employment relationship, which ended at the expiration of the last addendum. 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. This being so, it must be concluded that the termination of employment of the plaintiff does not affect any constitutional right, so the demand can not be upheld.
Lima, October 14, 2010
OFFICE OF INSTITUTIONAL IMAGE
EXP. No.
03818-2009-PA/TC SAN MARTÍN
LEAL ROY MARDEN
MAYTAHUARI
JUDGEMENT OF THE CONSTITUTIONAL COURT
In Lima, 12 days of October 2010, the First Chamber of the Constitutional Court, composed of Judges Street Hayen, Alvarez Miranda and Urviola Hani, made the following statement
SUBJECT
constitutional tort
Appeal lodged by Mr. Roy Marden Leal Maytahuari against the decision issued by the Second Decentralized Joint Superior Court of San Martín, on pages 390, date June 12, 2009, which dismissed the demand for cars. BACKGROUND
On November 6 2008, the plaintiff brought claim for protection against the Agency for the Formalization of Informal Property (COFOPRI) of San Martín, asking that it rescind the arbitrary dismissal has been, and that, therefore, is to replace his position verification techniques. He reports that he has worked through successive service lease, which has carried out work of a permanent nature, subject to working hours under subordination and dependence, from the August 1, 2001 until October 1, 2008. Additionally, requests that the defendant is inhibited from acts of hostility on pain of being denounced his legal representative. The
COFOPRI seized answer the complaint alleging that the applicant for administrative services under contracts for services from July 1, 2008 until expiration of the last one, on 30 September 2008, therefore, the appropriate process to resolve the dispute is the administrative litigation process.
The Public Prosecutor in charge of judicial affairs at the Ministry of Housing, Construction and Sanitation showed up, arguing that the documents submitted by the applicant is patently clear that non-personal services provided and that its regulation is under the Code Civil.
The Mixed Court of Tarapoto, dated 31 March 2009, states founded whereas demand in application of the principle of primacy of the fact the plaintiff had a working relationship with the COFOPRI, and therefore, administrative services contracts held were worthless.
reviewing
The Board, reversing the appeal, declared inadmissible, considering that to resolve the claim is necessary probation station, adding that the applicant has initiated a process for appeal of arbitrary dismissal. BASICS
§. Merits of the application and definition of the dispute
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 reality served under an employment relationship.
2. For its part, the part located states that the applicant was not dismissed arbitrarily, but at the expiration of his last contract administrative services are extinguished their respective contractual relationship.
3. From the arguments of the parties and in accordance with criteria of provenance in the binding precedent 00206-2005-PA/TC STC, we conclude in this case it is necessary to assess whether the applicant has been subject to arbitrary dismissal.
To determine this, an analysis of adequate protection must be afforded to workers in special employment scheme of the administrative contract services against unfair dismissal under the sentence passed in Exp No. 00002-2010 - PI / TC.
§. Adequate protection against arbitrary dismissal in the employment system of special administrative contract services
4. Before coming to assess the merits of a dispute should be noted that in Exp No. 00002-2010-PI/TC issued an interpretive statement in which it was stated that the Legislative Decree No. 1057 was constitutional, for the following reasons: a.
It is a special labor regime, because it recognizes all individual employment rights proclaimed in the Constitution in favor of workers, despite the rating assigned by the legislature delegate. B.
The rights and benefits that recognizes the administrative contract services such as special working arrangements do not violate the principle of equal right-with the treatment offered by the public employment regime and the private sector status, since all three have different treatment regimens that characterized and are objectively justified and reasonable.
5. Clarifications made above, it should be noted also that the base 17 of the STC 00002-2010-PI/TC, the Court stressed that the mere signing of contract administrative services generates the existence of an employment relationship.
result, no interest to pursue a claim in order to determine that, in the reality of the facts, the administrative services contract is a contract of employment, since it has been determined in Case mentioned unconstitutional, it has to be obeyed, followed and respected by all organs of public administration.
similar effect should be emphasized that from 21 September 2010, no judge of the judiciary or national Administrative Tribunal attached to the Executive may disapply the Legislative Decree No. 1057, because its constitutionality has been confirmed by the sentence handed down in the 00002-2010-PI/TC No. Exp. This is because they have the second paragraph of Article VI of the Preliminary Title and Article 82 º of CPConst. As well as the First General Arrangement of the Organic Law of the Constitutional Court.
6. These findings are that this Court established that under the process is unnecessary and irrelevant to ascertain whether prior to signing the contract administrative services, the applicant had served undercover job content through civil contracts, as in the case that this would occurred, the situation of fraud is an independent period of start of contract administrative services, which is constitutional. Therefore, this situation would have been spoiled and novada with one subscription service of the administrative contract.
7. Moreover, an analysis of the scope of the right to adequate protection against arbitrary dismissal in particular the contract labor system administrative services. To this end, we begin by recalling that the STC 00976-2001-AA/TC, the Court defined the content of that constitutional right and interpreted what constitutes adequate protection against arbitrary dismissal. Indeed, in the sentence above was stated that: a.
The right to adequate protection against arbitrary dismissal recognized in Article 27 of the Constitution can be approached from two perspectives: i) a scheme of a substantive nature, and ii) a system of judicial procedure. Substantive regime against arbitrary dismissal may be: i) preventive, or ii) to seek redress. While the procedural protection scheme can be: i) efficacy damages, or ii) restorative effectiveness.
On the constitutionality of the procedures adequate protection against arbitrary dismissal, it noted that the STC 00976-2001-AA/TC this Court stated that the establishment of a substantive regime is not incompatible with the option of the same legislature establish, simultaneously, a procedural system, ie both protection schemes are compatible with Article 27 of the Constitution. B.
The scheme noun-preventive protection against arbitrary dismissal is that the legislature intended to prevent, avoid or prevent a worker can be fired arbitrarily, ie, which calls for using a standard range of law provides that you can not arbitrarily dismiss a worker if it is not any grounds and in so far as it proved, after disciplinary proceedings, if necessary.
In the case of special labor regime of contract administrative services, this system of noun-preventive protection is provided for in subparagraph f) of paragraph 13.1 of Supreme Decree 075-2008-PCM, which reads the contract administrative services may terminated by:
"unilateral decision of the contracting entity, based on the unjustified breach of the obligations under the contract or failure in fulfilling the tasks assigned."
In this case of termination of contract administrative services, paragraph 13.2 of Supreme Decree 075-2008-PCM provides a procedure prior to dismissal in the following sense:
"In the case of item f) of paragraph 13.1 above the contracting entity shall charge to the contract by a notification failure. The contract has a term of five (5) working days express what they wish. Expiration of that period the entity has to decide in a reasoned and based on the criteria of reasonableness and proportionality, whether resolved or not the contract, informing the contract. "
Bearing in mind the contents of articles transcribed, the Court concludes that the substantive protection regime, preventive service management contract is consistent with the Constitution. In any case, it should be noted that the terms "contract" and "meets or not the contract" in paragraph 13.2 of Supreme Decree 075-2008-PCM must be understood as "worker" and "extinguished or not the contract."
c. The substantive protection system-repairing materializes when a regulation having the force of law does not prevent arbitrary dismissal occurs, but is limited to repairing patrimonial consequences. Under the STC 00976-2001-AA/TC, the substantive protection regime-repair is compatible with the Constitution if an employee was fired after arbitrarily primed "ordinary legal action in order to qualify the dismissal as unjustified, for the purpose of requiring the employer to pay such compensation compulsive. "
This system of adequate protection is provided for in section 13.3 Supreme Decree No. 075-2008-PCM, which provides that:
"When the administrative contract for services is determined by the public entity, unilaterally and without breach of contract, the judge may impose a penalty equal to the consideration not received, up to a maximum of two (2) months. "
Article transcript shows that the special labor regime of administrative services contract provides substantive protection regime, which has an effective repair for damages that is compatible with adequate protection provided by Article 27 of the Constitution against arbitrary dismissal. In any case, it should be noted that the term "solved" and "hired" in paragraph 13.3 of Supreme Decree 075-2008-PCM must be understood as "extinct" and "worker."
Court also should stipulate that constitutional interpretation of paragraph 13.3 of Supreme Decree 075-2008-PCM must be:
"If the dismissal occurs for wrongful dismissal, the employer has automatically required to pay workers' compensation equivalent to the remuneration not received, up to a maximum of two months. If the employer does not automatically pay compensation, the employee may file the corresponding application.
If the worker believes he has not committed the alleged unlawful dismissal or behind it constitutes a disproportionate penalty, may file a lawsuit asking to be paid compensation equivalent to the wages not received, up to a maximum of two (2) months. "
The interpretation is consistent with the principle-value human dignity enshrined in Article 1 of the Constitution which impose the worker is fired unreasonably to initiate a process to be granted compensation, is tantamount to an unnecessary burden that is not objectively justified. D.
In the STC 00976-2001-AA/TC also stated that the process is a procedural regime under adequate protection for recovery efficiency that is aimed at replacing the worker to his place of work and can not be understood, in the case of workers under the private regime, limited only by Legislative Decree No. 728, but in the face of the whole legal system, because this is not an aggregation chaotic laws, but one based on features consistency and integrity.
This consideration can be inferred that in the case of special labor regime of contract administrative services are also under process would effectively make restitution. However, this efficacy for recovery can not be predicated on the protection process because it would distort the essence of the contract administrative services, as this is a special employment and transitional regime which aims to begin the process of reform and reorganization of the civil service.
The replacement solution would distort the essence and temporary special administrative services contract, because contracts Work on this scheme are given period and not for an indefinite period. Moreover, under paragraph d) of Article 7 of the Additional Protocol to the American Convention on Human Rights in the Area of \u200b\u200bEconomic, Social and Cultural Rights, in cases of unjustified dismissal, the employee is entitled to compensation or reinstatement in employment or any other benefits provided by national legislation.
result, the special labor regime of administrative services contract is not covered by the procedural system for recovery efficiency (reinstatement on the job), but only the procedural system restorative efficiency (compensation).
§. Case Analysis
8. As we have stated in previous foundations, not for analysis in this process if prior to the signing of contract administrative services, civil contracts signed the applicant were denatured.
9. In this case, the contract administrative services and additional terms which are contained on pages 180 to 190, it is demonstrated that the applicant has maintained a fixed-term employment relationship, which ended at the expiration of the last rider. Therefore, having completed the term of that agreement, the termination of the employment relationship of the applicant produced automatically, as noted by the letter h) of paragraph 13.1 of Supreme Decree 075-2008-PCM.
being so, it must be 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 Constitutional Court with the authority under the Constitution of Peru
RESOLVED
1. Declare the petition, because it is not established infringement of the rights claimed.
2. Declare that the constitutional interpretation of paragraph 13.3 of Supreme Decree 075-2008-PCM is:
"If the dismissal occurs for wrongful dismissal, the employer is required to automatically pay the worker compensation equivalent to remuneration not received, up to a maximum amount equal to two months. If the employer does not automatically pay compensation, the employee may file the corresponding application.
If the worker believes he has not committed the alleged unlawful act supporting its dismissal or it constitutes a disproportionate penalty, may file a lawsuit asking to be paid compensation equivalent to the wages not received, up to a maximum of two (2) months. "
published and notifíquese.
SS.
STREET MIRANDA ALVAREZ Hayen
URVIOLA HANI
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