In the job demands-approval of the remuneration, the workers are demanding the existence of a treatment to wage unequal, in respect of a particular worker that performs the same functions and paid top; which is called counterpart.

From this, they often request payment of the difference as a refund of remuneration; and, the impact of the difference in the payment of workers ' rights, such as withdrawal of social benefits.

In accordance with the Cassation Labour N° 13843-2022-Piura, a worker began a work process for approval of wages and other, according to the ranges indicated. The judgment of first instance declared inadmissible the complaint; but, sentence in the upper chamber reversed its decision and stated founded the demand for reimbursement of salaries and social benefits (bonuses, holiday and CTS). In addition, this ruling of the upper room, ordered the employer to approve the monthly remuneration of the plaintiff with that of the counterpart presented, in both the two workers performing the same tasks.

For its part, the Supreme Court stated founded the appeal filed by the employer and the annulment of the judgment of the superior room, and ordered to issue a new ruling. The Court makes this decision because it considered that the sentence in question rejected the criteria of distinction offered by the employer to justify the equality of treatment; however, did not explain the reasons for its decision and, on this measure, incurred in the event of motivation apparent that affects the duty of motivation of judicial decisions.

At the discretion of the maximum court, in this type of work demands the judges labor must take into account three aspects. First, it is appropriate that identify the counterpart. In addition, it indicates that this should be proposed by the plaintiff in the complaint and must be necessarily individualized. 

Second, judges should continue with the determination of the specific functions that the workers conducted in practice, and whether they were identical. In this sense, it is not supported to a superficial analysis, which merely indicate that there is a difference in treatment. And third, they have to determine if there are objective causes of differentiation, such as the experience, the career, the academic profile or labour, among others. For this reason, it is appropriate that consideration and to ensure in detail on the reasons for the differential treatment.

The Supreme Court found that the Upper Room was the comparative analysis between the plaintiff and the counterpart; and, despite the fact that met the criteria of differentiation, the rejected. Well, he found out that the counterpart has more experience and employment history, account with a level work is different and has a composition of wage income different. On this last point, the Upper Room has not carried out an analysis of the components, part of which is given by collective agreements, or verified whether the applicant complies with the requirements and conditions in order to implement these conventions. Therefore, the Court concluded that it is not expressed sufficient reasons and details why these criteria of distinction are not a reasonable justification and proportional to the difference in exchange for payment.

SECOND ROOM OF CONSTITUTIONAL LAW AND SOCIAL TRANSIENT SUPREME COURT OF JUSTICE OF THE REPUBLIC

CASSATION LABOUR N.° 13843-2022-PIURA

Sumilla: The notion of equality assumes a relationship between the subjects that make up the society, in such a way that it can not be affirmed or denied, on the basis of an analysis that considers the individual in isolation. Therefore, in cases in which a complaint of discrimination, is a key from a term of comparison or tertium comparationis, from which we can perform a comparison between a and the other person.

Legal Basis: 18.  In view of the above, in the sense extensively detailed in the preceding lines, the claim proposed in the application (approval of remuneration) involves the evaluation on the part of the organ of justice, of a fact discriminatory, so that for the specific case, shall be guaranteed the right to the motivation of the court's rulings, if you have carried out a detailed examination of the parameters of comparison between the worker plaintiff and the counterpart that must necessarily be proposed in demand, because in any case, comes such a comparison in relation to a worker is not individualized.

19. This is so because, as was noted previously, the finding of discriminatory treatment cannot be based on an analysis in the abstract, but in a specific ratio, in practice, between the worker plaintiff and a homologue, which complies with identical functions, who shall serve as tertium comparationis valid.

20. But beyond the identification of counterparts, international jurisprudence, which is referred to in this resolution, has established that what is relevant here is the review of the reasons for the differential treatment; therefore, this is not a cursory analysis, it stops at the only existence of a difference of treatment (what happened in this case), but that should go in a detailed assessment of the reasons that lead to such differentiation. In general, the constant jurisprudence of this court Supreme, has left established that after the identification of the counterpart, should be pursued with the determination of whether, in practice, the two workers were identical functions; and finally, if there are objective causes of differentiation, such as the experience, the career, the academic profile or labour, among others that may be relevant to such effects.

21. For all the foregoing, the judgment of view presents a motivation apparent, that denies the reasons which justify —according to the respondent— differential treatment, but does not give details of the reason for his decision. Thus, when we attempted to perform the comparative analysis between the plaintiff and the counterpart, the Upper Chamber emphasized various differences between one and the other individual; thus, for example, it was noted that the claimant has legal recognition of their jobs since 02 march 2015, while the counterpart Zacarias Silva Asedo Porfirio joined to work the 01 of December of the year of 1988, which would account for a greater experience and career path.

22. On the other hand, in terms of category or level, ad quem argues that the counterpart has the SA-E in that the plaintiff is not a holder of level one; however, concludes that this is not an objective condition without further analysis; finally, it warns that it has not conducted an analysis in terms of the components of compensation that comprise the remuneration of the counterpart and the plaintiff, but to argue that it would correspond to verify if the applicant complies with the requirements and conditions of such agreements, but that is not do not be a matter of decision.

23. Despite all this, the Upper Chamber concludes that the existence of an act of discrimination on the basis solely of the difference remuneration, minimizing the findings that she detailed in the judgment of view, which do not express sufficient reasons and detailed why they are not a reasonable justification and proportional to the difference in exchange for payment.

[JURISPRUDENCE...]