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Labor Newsletter – September 2019

LABOR NEWSLETTER

REM CURRENT NEWS

Orientation and Accompaniment Service is created in cases of sexual harassment “Work without Harassment”.- Guidelines were issued through this service and the Ministry of Labour and Employment Promotion offers the following:

  • Attention and guidance: User reception and identification of a possible crisis situation.
  • Legal assistance: Identification of case of sexual harassment, alternatives of the victim and assistance during the procedure/process followed by the victim.
  • Psychological assistance: Support for victims of violence through emotional support, preparation of a psychological report on the possible harm and psychological support during the procedure/process in cases of sexual harassment.

New Guide for prevention and sanction of sexual harassment at work.- This Guide is aimed at both employers and workers, as it establishes guidelines on how to identify situations of sexual harassment, as well as responsibilities of employers and mechanisms of action within the reach of workers.

Likewise, this Guide approves the following referential formats: (i) complaint or reporting of sexual harassment; (ii) report format of the Intervention Committee regarding cases of sexual harassment; (iii) employer final decision format; (iv) model clause to be included in pre-professional and professional practice agreements; (v) training agenda for the staff of an organization; and, (vi) training agenda for specialized personnel (Human Resources and Intervention Committee in cases of sexual harassment)

REM CASE LAW

Fixed-term employment contracts that have not been registered with the Administrative Labour Authority (AAT) are not lopsided. – When analysing the validity of a fixed-term employment contract in force between July 22, 2011 and February 2, 2012, the Constitutional Court stated that if a fixed-term employment contract is not registered at AAT, the imposition of a fine will be produced, however they will not be lopsided (STC N ° 624-2018-PA/TC).

This formal requirement to register fixed-term contracts was eliminated by Legislative Decree No. 1246, issued on October 9, 2016, so this standard would apply to contracts that have been entered into previously.

Former workers who receive compensation for unlawful dismissal by bank deposit must return it immediately to proceed with their claim for reinstatement.- The Supreme Court has established that the former workers who demand their replacement and who have been paid compensation for unlawful dismissal, shall prove that they did not charge it or, failing that, they returned it or consigned it in favour of the employer immediately. Otherwise, it will be understood that they accepted the said compensation and, consequently, their replacement will be dismissed (Labour Cassation N° 18888-2017-ICA)

INSPECTIONS

The existence of a firm judicial decision that denies a labour right is sufficient support to revoke the fine imposed.- The Sub-Intendancy had accepted the proposed fine for not paying the salaries of April, May, June and July 7, 2016 in favour of a former worker, as well as the lack of payment of the social benefits generated by the same period. Subsequent to the appeal, the employer proved that the lawsuit of the former worker, at the aforementioned circumstances, had been declared unfounded in court considering both the first and second instance that the employment contract was suspended in a perfect way during the period claimed. By means of the Administrative Resolution N°819-2019-SUNAFIL/ILM, the Metropolitan Lima Administration (ILM), indicated that the judicial process initiated by the former worker does not constitute a valid cause for the inhibition of the administrative authority. However, there is a firm judicial decision that denies the labour law and proves that there was no breach by the employer.  So, this serves as a support to invalidate the fine imposed.
In the same resolution, the ILM notes that the applicable limitation period of 4 years to determine the existence of labour infractions is computed until the date on which the first instance resolution is issued.

 SECURITY AND HEALTH AT WORK

The annual occupational medical examination may coincide with the retirement exam. – This is what SUNAFIL ordered through this ultimate resolution by which factual requirements of this sanction was rescinded because the supervised mining company had carried out the annual medical examination almost a month and a half before cessation.  SUNAFIL recognized that this situation was valid not only in accordance with the provisions of the health standard that approves the protocols for occupational medical examinations, but because it is reasonable to think that in such a short time the worker’s medical situation will not vary.