The Supreme Court clarified the parameters of comparison that should be taken into account to determine whether or not the approval of the remuneration.
In accordance with the judgment corresponding to the Cassation Labour N° 16107-2021 Piura issued by the Second board of the Constitutional Right and Social Transient of the highest court it is desirable to perform a due analysis with the purpose of determining whether or not the same treatment in remuneration between a worker and another, which in essence violates, among others, the principle of equality, which is considered as a fundamental right and is enshrined in the Constitution.
[Also read: Attention, servers! Applications for the Challenge program to the Excellence they close on the 16th of September] To that extent, the supreme court indicates that it should establish clear and precise, in the first place: the employee id homologous or comparative in respect of which supposedly the employer would have made a deal with wage-discriminatory with regard to who as the applicant is seeking approval of remuneration.
In the second place, it is required to determine whether, in practice, have been carried out identical functions; and in the third place, it must assess the existence of the objective reasons such as experience, work experience, the academic profile and/or employment, among others, detailing the referee supreme.
All this, in order to determine whether or not the same treatment rewarding, says the hall of supreme.
Specific case
In the event the matter of the said appeal, the labour of a worker of a state entity filed a lawsuit requesting the payment of a bond approved in respect of the position he has played in comparison with other equivalent charges.
In the first instance, the judicial organ of corresponding states was founded in part to the demand, and on appeal this court decision is confirmed by the referee higher than that heard the case, to which the defendant company filed an appeal to labour.
The defendant company alleges that the referee of the second instance is when you issue your judgment incurred in violation of regulations of the Fifty-Fifth and one Hundred and Eighth Additional Provision End of the Law No 30879, Act of Public Sector budgets for the fiscal year 2019, as well as in violation of provisions of the paragraph 1 of the Fourth Transitional Provision of the Law No. 28411, Ley General of the National Budget, and the article 19 of the Law No. 28112, the Framework Law on the Financial Management of the Public Sector.
To take cognizance of the case on appeal, labour, the hall of supreme warns of the review of sentences of first-and second-instance court that there was a correct analysis, with respect to the bonus approved by the office of the worker plaintiff to the charge of a worker who is presented as equivalent.
In addition, the supreme court notes that the judicial proceedings of merit have recognized the bonus that corresponds to the worker plaintiff with the will correspond to another worker from another area of the same entity from march 2006 to February 2008, without the prior set of precise and clear manner, in the first place: the employee id homologous or comparative in respect of which supposedly the employer would have made a deal with wage discrimination in relation to the worker plaintiff.
In addition, the collegial supreme warns that it has not been determined whether, in practice, have been made identical features; nor has evaluated the existence of some objective reasons such as experience, work experience, academic background and/or work, among others.
Endpoints that have not been accredited by the employee plaintiff, that is to say, has not proposed the counterpart to make the comparison, it has not established the matches are set forth with the aforementioned counterpart, which leads to the absence of a valid comparative, detailed room supreme.
To the couple, the referee supreme considers that it could be argued discrimination on the basis that "we are dealing with two types of workers whose functions are different, and, therefore, the analysis of the Collegiate Top is lacking motivation in the endpoint, which leads to declare the nullity in that end, to have solved one end improbado".
The hall of supreme is also accurate that in the case because of his knowledge, the main reason for the instances of merit have covered the payment of the bond is approved, it is on the basis of the inclusion within the same occupational group of the charges as the worker plaintiff and of the charges of other workers in other areas of the defendant company.
That is to say, the Upper Chamber considers that the pay scale has a wage similar to the position of the worker plaintiff as to the staff in other areas as fixed one and the same, it points to the supreme court.
For all of the above, among other reasons, the hall of supreme declares founded the above-mentioned appeal work.
Definition
The appeal is a means impugnatorio extraordinary, highly formal, and that comes only by the causal specifically prescribed in article 56 of the Law N° 26636, Procedural Law of the Job, as amended by article 1 of Law N° 27021, which are: (a) the improper application of a rule of substantive law, (b) the erroneous interpretation of a rule of substantive law, c) the non-application of a rule of substantive law, and (d) the contradiction with other rulings issued by the Supreme Court of Justice or the Superior Courts, pronounced in cases objectively similar, provided that such a contradiction is referred to one of the grounds above, explains the lounge supreme.
Likewise, he adds, in accordance with the provisions of article 58 of the Law N° 26636, it is a requirement that the appellant based with clarity and precision the grounds described in article 56 of the act. And as the case may sustain: (a) what standard have been improperly applied, and what is the that had to be applied, (b) what is the correct interpretation of the standard, c) what is the standard unenforceable in and why he had to be applied and (d) what is the similarity between the pronouncements invoked and what is the contradiction; and should the living Room Casatoria qualify these requirements and if they are found agreeable, in a single act, you must decide upon the merits of the appeal, detailing to the supreme court. In case of non-compliance with any of these requirements, it shall declare inadmissible, she points out.
Notes
The supreme court believes that the fiscal rules are not an impediment or justification sufficient to generate or validate mechanisms of avoidance of the statute protector of the work in the labour relations sustained by the State, embodied in any of its different institutions, entities, and agencies that are part of it.
On the contrary, being the main State giver of the rules of labour, is the call to be the ultimate guardian of constitutionality, legality and enforcement of the same, precisely the referee supreme.
Source: PeruvianDate: 05/09/2024
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