EXP.
No. PIURA
01486-2010-PA/TC
FLORES ANDREW CARLIN AVELINO
JUDGEMENT OF THE CONSTITUTIONAL COURT
In Lima, the 27th day of October 2010, Second Chamber of the Constitutional Court, composed of Judges Mesía Ramirez, Beaumont and Eto Callirgos Cruz, made the following Case
SUBJECT
constitutional tort
Appeal lodged by Mr. Andrés Avelino Flores Carlin against the decision of the Second Civil Chamber of the Superior Court of Justice of Piura, on pages 224, date January 25, 2010, which dismissed the demand for cars. BACKGROUND
By application dated June 9, 2009 and subsanatorio letter dated July 1, 2009, the plaintiff initiates the process of protection against the Provincial Municipality of Piura, seeking to rescind Resolution No. Mayoral 512-2009-A/MPP, dated May 25, 2009, by which he was informed his dismissal and that, consequently, to order his reinstatement in his job.
relates that his dismissal is disproportionate because he was charged as gross misconduct and had falsified documents, though, for the same conduct, criminal justice have not been convicted, which in its opinion, affects their right to presumption of innocence. It also points out that he had no accountability for tickets and travel provided by the municipality situated, for they were granted under collective agreements are agreed. Finally, he notes that his dismissal be declared invalid because it was in retaliation for his worker status unionized.
The Public Prosecutor in charge of judicial affairs of the municipality located answer the complaint stating that the applicant was properly dismissed for having engaged in serious wrongdoing, since adultery payment vouchers that were used to support accountability for travel expenses that were given.
The Third Civil Court for Piura, dated August 18, 2009, upheld the action, finding that the misconduct for which he dismissed the plaintiff has no direct relationship with the capacity or conduct as an employee but their union activity, because the plaintiff has not been dismissed under the procedure established by Supreme Decree No. 003-97-TR, and because it is disproportionate to the amount missing is imposed the penalty of dismissal, because it does not represent even 1% of the amount analyzed in accountability.
reviewing
The Board, reversing the appeal, dismissed the claim, holding that the alleged unlawful act underlying the dismissal of the plaintiff, such as falsifying documents to account for the allowances granted, is not related to their status union leader. BASICS
§ Definition of the petition and merits of the application
1. The application seeks to annul Resolution No. 512-2009-A/MPP Mayor, dated May 25, 2009, which decided to terminate the employment relationship that kept the parties to this process, because the applicant committed in the commission of serious offenses, such as falsifying documents to support the accountability of the per diem given to him by the Municipality.
The lawsuit alleges that the challenged resolution violates the right to presumption of innocence, because of the facts which the plaintiff was fired, he initiated a criminal proceeding even not complete. It also states that the right referred to would have violated because the alleged unlawful act was not part of its obligations as an employee and that the dismissal procedure was irregular, as they do not respect the establishment of the Commission agreed in collective agreements agreed.
Finally, the application is invoked that the above resolution has also injured the right to freedom of association of the applicant, because his dismissal was retaliation for being a union worker.
2. On the basis of the allegations outlined and attention to cases from which the work under process, established the bases 7 to 20 of binding precedent 00206-2005-PA/TC fallen in STC, the Court considers that in this case is to assess whether the applicant has been subject to arbitrary dismissal or dismissal null and void, as alleged in demand.
§ Analysis of the dispute
3. Addressing the corresponding analysis must be remembered that the plaintiff was fired because, as a worker, filed three false receipts from the amount of S /. 200.00, to support part of the advance granted by the Payment Voucher No. 006,789, dated May 19, 2006, on secondment to the city of Lima, which was approved by Resolution No. 0458-2006-A/MPP Hall.
thus raising the offense for which there was no longer working relationship of the plaintiff, the Court considers it appropriate to make some clarifications about the disciplinary dismissal of the plaintiff. First, it should be noted that the applicant was dismissed in the manner provided in Article 31 of Supreme Decree No. 003-97-TR, through the Office as No. 230-2008-GA/MPP was communicated to misconduct as charged and was given within 6 calendar days to submit its releases, so in this case there is no evidence the alleged violation of the constitutional right to due process.
Secondly, one can not ignore that, although the operative paragraphs of the resolution in question provides that "[d] ar terminating the employment relationship between the Provincial Municipality of Piura and Mr. Andrés Avelino Flores Carlin, as a result the commission of serious misconduct "does not mean that the applicant has not been properly dismissed, since the omission of the word fire or the grounds on which he was fired in the operative paragraphs of the resolution does not affect the right any constitutional, because the internal justification of it will be inevitably conclude that the applicant was dismissed by the commission of serious offenses in subparagraphs a), c) and d) of article 25 of Supreme Decree No. 003-97-TR.
Finally, it should be noted that the failure of the ends of collective agreements which provide that the Ad Hoc Committee should be composed of a representative of the Union of Workers of the Municipality located, does not constitute a violation of the right to due process , as the form of research, and the formation of the body that sanctions, is the sole responsibility of the employer or the legislature, and that such materials are not related to working conditions to be regulated by an agreement group. Therefore, the failure to end the collective agreements referred to due process does not affect that in any case is predetermined by the Supreme Decree No. 003-97-TR and the Working Rules.
4. Made the above clarification, it should be noted that the Mayor's Resolution No. 512-2009-A/MPP not infringe the right to presumption of innocence of the plaintiff, because its foundation is clear that the material facts and supporting its dismissal are established as serious offenses in subparagraphs a), c) and d) of article 25 of Supreme Decree No. 003-97-TR, ie the Municipality located upheld the decision not dismiss the applicant that his conduct was criminalized.
5. Similarly, it should be noted that serious misconduct justifying dismissal of the plaintiff were charged him in due form, as the allowances that are granted to officers, servants or employees of public administration are subject to later accountability , which must be supported with documents true and not fake.
In this case, the plaintiff, in order to evade its responsibility, argues that the per diem provided by the municipality were not subject to subsequent accountability. This argument without merit, because the rules of the National Control System imposes a binding obligation that when the officer, servant or employee of the Public Administration receives money from the public budget for travel, then he should be accountable for how they conducted their spending.
thus raising the question, it is valid to conclude that the applicant was required to account for the per diem given since graduated from the public budget of the municipality located and, obviously, the documents that supported these costs should not be adulterated or false, of course did not happen in this case, so that the complaint de las faltas graves no afecta ningún derecho constitucional.
6. De otra parte, este Tribunal debe desestimar el alegato consistente en que la sanción de despido fue desproporcionada, pues la gravedad de la falta que cometió el demandante, como lo es haber falsificado documentos para sustentar la rendición de cuentas de los viáticos que se le entregaron, justifica en forma debida que el despido del demandante sea una sanción proporcionada con relación a la gravedad de la falta cometida.
En este sentido, debe subrayarse la falta de razonabilidad del argumento esgrimido en primer grado para estimar la demanda, consistente en que “la medida impuesta resultaría desproporcionada, taking into account the amount that has been investigated in relation to the missing amount does not represent even one percent. "
The argument transcript is unreasonable, out of context because the act charged as a failure, namely that the applicant submitted false documents when filing the allowances given to him by the Municipality located. Also, the argument transcript is not consistent with logical reasoning, rational and reasoned on the severity of the alleged unlawful act underlying the plaintiff's dismissal, since the amount of research can not be a valid parameter for measuring the penalty imposed, because in this case, which sanctions is the conduct that violates the good faith work, regardless of the amount missing.
7. As regards the involvement of the right to freedom of association, it should be noted that in the case has been proved that the applicant has been subject to disciplinary dismissal because of committing serious offenses. Consequently, it is not disputed that the disciplinary dismissal of the plaintiff to conceal an act of retaliation by the employer as a result of their membership and union activity and therefore not set the alleged infringement of the right to freedom of association.
For these reasons, the Constitutional Court with the authority under the Constitution Peru's political
RESOLVED
declare the petition, because he has not established that the disciplinary dismissal of the applicant has violated any constitutional right.
published and notifíquese.
SS. MESSIAH
RAMÍREZ
BEAUMONT Callirgos
ETO CRUZ
No. PIURA
01486-2010-PA/TC
FLORES ANDREW CARLIN AVELINO
JUDGEMENT OF THE CONSTITUTIONAL COURT
In Lima, the 27th day of October 2010, Second Chamber of the Constitutional Court, composed of Judges Mesía Ramirez, Beaumont and Eto Callirgos Cruz, made the following Case
SUBJECT
constitutional tort
Appeal lodged by Mr. Andrés Avelino Flores Carlin against the decision of the Second Civil Chamber of the Superior Court of Justice of Piura, on pages 224, date January 25, 2010, which dismissed the demand for cars. BACKGROUND
By application dated June 9, 2009 and subsanatorio letter dated July 1, 2009, the plaintiff initiates the process of protection against the Provincial Municipality of Piura, seeking to rescind Resolution No. Mayoral 512-2009-A/MPP, dated May 25, 2009, by which he was informed his dismissal and that, consequently, to order his reinstatement in his job.
relates that his dismissal is disproportionate because he was charged as gross misconduct and had falsified documents, though, for the same conduct, criminal justice have not been convicted, which in its opinion, affects their right to presumption of innocence. It also points out that he had no accountability for tickets and travel provided by the municipality situated, for they were granted under collective agreements are agreed. Finally, he notes that his dismissal be declared invalid because it was in retaliation for his worker status unionized.
The Public Prosecutor in charge of judicial affairs of the municipality located answer the complaint stating that the applicant was properly dismissed for having engaged in serious wrongdoing, since adultery payment vouchers that were used to support accountability for travel expenses that were given.
The Third Civil Court for Piura, dated August 18, 2009, upheld the action, finding that the misconduct for which he dismissed the plaintiff has no direct relationship with the capacity or conduct as an employee but their union activity, because the plaintiff has not been dismissed under the procedure established by Supreme Decree No. 003-97-TR, and because it is disproportionate to the amount missing is imposed the penalty of dismissal, because it does not represent even 1% of the amount analyzed in accountability.
reviewing
The Board, reversing the appeal, dismissed the claim, holding that the alleged unlawful act underlying the dismissal of the plaintiff, such as falsifying documents to account for the allowances granted, is not related to their status union leader. BASICS
§ Definition of the petition and merits of the application
1. The application seeks to annul Resolution No. 512-2009-A/MPP Mayor, dated May 25, 2009, which decided to terminate the employment relationship that kept the parties to this process, because the applicant committed in the commission of serious offenses, such as falsifying documents to support the accountability of the per diem given to him by the Municipality.
The lawsuit alleges that the challenged resolution violates the right to presumption of innocence, because of the facts which the plaintiff was fired, he initiated a criminal proceeding even not complete. It also states that the right referred to would have violated because the alleged unlawful act was not part of its obligations as an employee and that the dismissal procedure was irregular, as they do not respect the establishment of the Commission agreed in collective agreements agreed.
Finally, the application is invoked that the above resolution has also injured the right to freedom of association of the applicant, because his dismissal was retaliation for being a union worker.
2. On the basis of the allegations outlined and attention to cases from which the work under process, established the bases 7 to 20 of binding precedent 00206-2005-PA/TC fallen in STC, the Court considers that in this case is to assess whether the applicant has been subject to arbitrary dismissal or dismissal null and void, as alleged in demand.
§ Analysis of the dispute
3. Addressing the corresponding analysis must be remembered that the plaintiff was fired because, as a worker, filed three false receipts from the amount of S /. 200.00, to support part of the advance granted by the Payment Voucher No. 006,789, dated May 19, 2006, on secondment to the city of Lima, which was approved by Resolution No. 0458-2006-A/MPP Hall.
thus raising the offense for which there was no longer working relationship of the plaintiff, the Court considers it appropriate to make some clarifications about the disciplinary dismissal of the plaintiff. First, it should be noted that the applicant was dismissed in the manner provided in Article 31 of Supreme Decree No. 003-97-TR, through the Office as No. 230-2008-GA/MPP was communicated to misconduct as charged and was given within 6 calendar days to submit its releases, so in this case there is no evidence the alleged violation of the constitutional right to due process.
Secondly, one can not ignore that, although the operative paragraphs of the resolution in question provides that "[d] ar terminating the employment relationship between the Provincial Municipality of Piura and Mr. Andrés Avelino Flores Carlin, as a result the commission of serious misconduct "does not mean that the applicant has not been properly dismissed, since the omission of the word fire or the grounds on which he was fired in the operative paragraphs of the resolution does not affect the right any constitutional, because the internal justification of it will be inevitably conclude that the applicant was dismissed by the commission of serious offenses in subparagraphs a), c) and d) of article 25 of Supreme Decree No. 003-97-TR.
Finally, it should be noted that the failure of the ends of collective agreements which provide that the Ad Hoc Committee should be composed of a representative of the Union of Workers of the Municipality located, does not constitute a violation of the right to due process , as the form of research, and the formation of the body that sanctions, is the sole responsibility of the employer or the legislature, and that such materials are not related to working conditions to be regulated by an agreement group. Therefore, the failure to end the collective agreements referred to due process does not affect that in any case is predetermined by the Supreme Decree No. 003-97-TR and the Working Rules.
4. Made the above clarification, it should be noted that the Mayor's Resolution No. 512-2009-A/MPP not infringe the right to presumption of innocence of the plaintiff, because its foundation is clear that the material facts and supporting its dismissal are established as serious offenses in subparagraphs a), c) and d) of article 25 of Supreme Decree No. 003-97-TR, ie the Municipality located upheld the decision not dismiss the applicant that his conduct was criminalized.
5. Similarly, it should be noted that serious misconduct justifying dismissal of the plaintiff were charged him in due form, as the allowances that are granted to officers, servants or employees of public administration are subject to later accountability , which must be supported with documents true and not fake.
In this case, the plaintiff, in order to evade its responsibility, argues that the per diem provided by the municipality were not subject to subsequent accountability. This argument without merit, because the rules of the National Control System imposes a binding obligation that when the officer, servant or employee of the Public Administration receives money from the public budget for travel, then he should be accountable for how they conducted their spending.
thus raising the question, it is valid to conclude that the applicant was required to account for the per diem given since graduated from the public budget of the municipality located and, obviously, the documents that supported these costs should not be adulterated or false, of course did not happen in this case, so that the complaint de las faltas graves no afecta ningún derecho constitucional.
6. De otra parte, este Tribunal debe desestimar el alegato consistente en que la sanción de despido fue desproporcionada, pues la gravedad de la falta que cometió el demandante, como lo es haber falsificado documentos para sustentar la rendición de cuentas de los viáticos que se le entregaron, justifica en forma debida que el despido del demandante sea una sanción proporcionada con relación a la gravedad de la falta cometida.
En este sentido, debe subrayarse la falta de razonabilidad del argumento esgrimido en primer grado para estimar la demanda, consistente en que “la medida impuesta resultaría desproporcionada, taking into account the amount that has been investigated in relation to the missing amount does not represent even one percent. "
The argument transcript is unreasonable, out of context because the act charged as a failure, namely that the applicant submitted false documents when filing the allowances given to him by the Municipality located. Also, the argument transcript is not consistent with logical reasoning, rational and reasoned on the severity of the alleged unlawful act underlying the plaintiff's dismissal, since the amount of research can not be a valid parameter for measuring the penalty imposed, because in this case, which sanctions is the conduct that violates the good faith work, regardless of the amount missing.
7. As regards the involvement of the right to freedom of association, it should be noted that in the case has been proved that the applicant has been subject to disciplinary dismissal because of committing serious offenses. Consequently, it is not disputed that the disciplinary dismissal of the plaintiff to conceal an act of retaliation by the employer as a result of their membership and union activity and therefore not set the alleged infringement of the right to freedom of association.
For these reasons, the Constitutional Court with the authority under the Constitution Peru's political
RESOLVED
declare the petition, because he has not established that the disciplinary dismissal of the applicant has violated any constitutional right.
published and notifíquese.
SS. MESSIAH
RAMÍREZ
BEAUMONT Callirgos
ETO CRUZ
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