The Supreme Court of Justice developed the scope of the principle of continuity applies in labor relations. In accordance with the judgment corresponding to the Cassation N° 821-2021 Lima issued by your Fourth Hall of Constitutional Law and Social Transient, this principle is premised on the presumption that the contract of employment is a link of prolonged duration between employer and worker, for being for the latter, his main source of income.

To that extent, this principle labour will seek to defend the more long-lasting as possible to the agreement of the worker, according to the facts and the demonstrated reality, preferring the recruitment for an indefinite time that the fixed-term, detailed room supreme in the cited sentence with which declared unfounded the appeal within a regular process of payment of social benefits, and other.

Foundation

Thus, the supreme court warns that the continuity is manifested when the labor law favors the existence of labour relations indefinite period of time, allowing the amplitude to admit interruptions in the employment relationship without causing the extinction of the contract and including restrictions on possible (or future) unilateral changes to the employment relationship.

In that sense, it is pronounced the Constitutional Court (TC) in its judgment relapse in the File N° 03976-2012-PA/TC, referred to the referee supreme.

In that ruling, the supreme interpreter of the Constitution stipulates that according to article 4 of the Orderly Unique Text (TUO) of the Legislative Decree N° 728, Law of Productivity and Competitiveness (LPCL), approved by Supreme Decree no. 003-97 -TR, in all personal allowance paid services and subordinates, it is presumed the existence of a contract of employment for an indefinite period, taking into account the individual contract of employment may take place freely for a period of time or subject to modality. 

To do this, the TC notes that the rule specifies that the first can be done in a verbal or written form and the second in the cases and with the requirements of that law provides.

So, the supreme interpreter of the Constitution concludes that in the regime labour peruvian principle of continuity operates as a limit to the employment contract for a certain time, warns the hall of supreme.

Therefore, check that the TC, STC N° 1874-2002 - AA/TC, he said that “there is a preference for employment for indefinite period of time in respect of the determined duration, the one that has exceptional character and proceed only when the tasks are going to be provided (subject of the contract) are of a temporary nature or accidental”.

“And that is that, as the result of such an exceptional nature, the law establishes formalities, requirements, terms and conditions special for this type of contract, and even penalties when using these, they use the simulation or the fraud, it is intended to evade the employment contract for a period of time,” said the supreme interpreter of the Constitution in that failure.

Case

In the event the matter of the said appeal, a painter brings a claim for recognition of his / her employment relationship with the municipality and to order the payment of their respective social benefits.

In the first instance court had rejected the request and in the second instance, the Judicial court overturned that decision, stating founded in demand.

Before this, the local government respondent filed an appeal claiming, among other reasons, that the collegiate top in issuing its judgment of second instance court made a rules infraction of article 1 of the Law N° 27321, to not applying it correctly. The whole time that the municipality complained against considers that the upper chamber did not appreciate properly the evidence that credited the interruption in the provision of services, so that it would not do to acknowledge to the complainant under the working regime of private sector activity.

Decision

To take cognizance of the case on appeal, the hall of supreme notes as determined by the highest court instance that the plaintiff has the quality of a worker having served in his work as a painter in the Sub-Management of Maintenance and Beautification of the local government defendant.

In this context, the highest court warns the denaturation of the contracts of location services, contracts manners and the ineffectiveness of the contract administration services (CAS) concluded between the parties to the process.

Therefore, the room supreme shows the configuration of an employment relationship of nature indeterminate since 2 June 2001 onwards.

Of the above, the highest court concludes that, by having been given the continuity in the provision of services, taking into account the principle of continuity of labour and be in force on the date of the filing of the demand of the employment relationship, the causal invoked by the municipality sued in this end becomes unfounded.

Accordingly, the board supreme declares unfounded referred to the court of cassation.

Rules

In accordance with article 1 (article only) of the Law N° 27321 that sets a new limitation period of the actions arising from the employment relationship, the actions by the rights arising from the employment relationship expire after four years, counted from the day following that on which it extinguishes the employment relationship.

In the meantime, the article 34° of the Procedural Law of Work (Law N° 29497) on the grounds of the appeal states that the appeal is based on the infringement of regulations that have a direct impact on the decision contained in the contested decision or in the departure from the precedents handed down by the Constitutional Court or the Supreme Court of Justice of the Republic.

In addition, pursuant to article 5 of the LPCL services to be of a labor nature should be provided within a personal and direct way just by the worker as a natural person. In this context, it is specified that does not invalidate this condition that the worker can be helped by immediate family members who depend on him, provided that this is unusual given the nature of the work.

SUPREME COURT OF JUSTICE OF THE REPUBLIC

FOURTH ROOM OF CONSTITUTIONAL LAW AND SOCIAL TRANSIENT

APPEAL N° 821-2021-LIMA

SUMILLA: The principle of continuity, which is premised on the presumption that the contract of employment is a relationship of long duration between the employer and the employee, being for the latter, his main source of income. This principle labour will seek to defend the more long-lasting as possible to the agreement of the worker, according to the facts and the demonstrated reality, preferring the recruitment for an indefinite time that of the determined duration

LEGAL BASIS: EIGHTH. To respect is to take into account for the present case, the principle of continuity, which is premised on the presumption that the contract of employment is a relationship of long duration between the employer and the employee, being for the latter, his main source of income. This principle labour will seek to defend the more long-lasting as possible to the agreement of the worker, according to the facts and the demonstrated reality, preferring the recruitment for an indefinite time that of the determined duration. Thus, the continuity is manifested when the labor law favors the existence of labour relations indefinite period of time, allowing the amplitude to admit interruptions in the employment relationship without causing the extinction of the contract and iincluding restrictions on possible (or future) unilateral changes to the employment relationship.

It is thus that the Constitutional Court in its judgment relapse in the File N° 03976-2012-PA/TC, refers to the following:

"According to the article 4 of Supreme Decree NO. 003-97 -TR, "In all personal allowance paid services and subordinates, it is presumed the existence of a contract of employment for an indefinite period. The individual contract of employment may take place freely for a period of time or subject to modality. The first can be done in a verbal or written form and the second in the cases and with the requirements of the present Law establishes.

Article transcribed it can be concluded that in the labour regime peruvian principle of continuity operates as a limit to the employment contract for a certain time. Therefore, the Constitutional Court, in the STC 1874-2002 - AA/TC, pointed out that there is a preference for the hiring time

undefined respect of the determined duration, the one that has exceptional character and proceed only when the tasks are going to be provided (subject of the contract) are of a temporary nature or accidental.

And is that, as the result of such an exceptional nature, the law establishes formalities, requirements, terms and conditions special for this type of contract, and even penalties when using these, they use the simulation or the fraud, it is intended to evade the employment contract for a period of time”.

As determined by the instance of merit, the plaintiff has the quality of a worker having served in his work as a painter in the Sub-Management of Maintenance and Decoration, in that regard, it warns the denaturation of the contracts of location services, contracts manners and the inefficiency of the administrative contracts for services entered into between the parties to the proceedings, having been configured, therefore, an employment relationship of nature indeterminate from 02 June 2001 onwards.

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