Extension of the State of Emergency and restrictions.- The National State of Emergency was extended until July 31, 2021, and the restrictions applicable to each region were defined, depending on the alert level.
Extension of remote work.- The possibility for workers to implement remote work has been extended until December 31, 2021.
Supreme Court restricts the assumptions of compensation for non-pecuniary damages before the lawsuits challenging dismissal.- The Supreme Court specified that the compensation against arbitrary dismissal set by law is the only compensation for pecuniary and non-pecuniary damages arising from the same (Labor Cassation Nº 340-2018-Del Santa). In this sense, it pointed out that the economic reparation for the psychological affliction caused by the dismissal and formulated as moral damage, damage to the person or to the life project, only proceeds when the damage is an extraordinary fact, accredited and generated by a malicious conduct of the worker that affects the dignity, honor or reputation of the worker.
Dismissal is valid if the worker provides false information to obtain a medical leave.- The Supreme Court has established that the provision of a medical leave whose origin is false constitutes a just cause for dismissal in application of paragraph d) of Article 25 of Supreme Decree Nº 003-97-TR, which punishes the provision of false information to the workers in order to cause them harm and obtain an advantage. This, considering that in this case the worker showed that, during the time off, the worker attended a social event despite having declared his temporary incapacity to work due to an illness.
INSPECTIONS
The Labor Inspection Court (TFL) validates the application of an atypical extended workday due to the COVID-19 pandemic.- The TFL departs from the position maintained by SUNAFIL since the beginning of the pandemic and concludes that the spread of COVID-19 constitutes a case of fortuitous event or force majeure that justifies the non-application of the binding precedent of the Constitutional Court on atypical mining workdays (Resolution Nº 022-2021-SUNAFIL/TFL).
In that sense, it considers valid that the company and the workers agree on the temporary application of an extended atypical workday, exceeding 48 hours on average calculated in periods of 3 weeks, in order to reduce to the minimum possible, the displacements of the personnel, thus avoiding creating more situations of possible contagion of COVID-19 in compliance with the duty of prevention.
Version 2 of the “Directive regulating the sanctioning procedure of the labor inspection system” was adopted.- Among other amendments, the new version includes provisions that were not contemplated in the initial directive, regarding: (i) functions of the second administrative instance; (ii) powers of the TFL and processing of the review appeal; (iii) requirements to request the use of the floor; (iv) variation in charges; (v) provisional administrative measures, among others.
Version 3 of the “Protocol on the exercise of the labor inspection, within the framework of the declaration of national and health emergency” was adopted.- The new version of the Protocol incorporates the legislative amendments, with labor relevance, issued within the framework of the national emergency and the health emergency, and introduces clarifications on the development of the stage of inspection actions in the context of the pandemic.
Among other aspects, the new version incorporates provisions for applying the inspection measure of work stoppage or prohibition in the event of alleged non-compliance with the occupational safety and health provisions issued under COVID-19.
OCCUPATIONAL SAFETY AND HEALTH
The Occupational Safety and Health Law was amended.- For further details, please consult the following link: https://www.estudiorodrigo.com/alerta-laboral-junio-2021/.
Penalties may only be imposed for a fatal accident if there is a relationship between the cause of death and a breach of occupational health and safety.- This was the decision of the TFL in a recent ruling in which it partially revoked the fine against a company for a fatal accident involving a worker in the course of his work.
The worker died due to a natural cause (cerebral edema); however, the company was initially fined approximately S/. 280,000.00 for allegedly not having adopted control measures. The indictment was made despite the fact that the necropsy certificate did not determine a specific cause of death.
The TFL stated that it is not possible to attribute liability – even less on the basis of such a generic non-compliance – if there is no evidence between the death and the company’s conduct.
