The change of job or the assignment of different tasks to those that were carried out does not always constitute an assumption of excess of the exercise of the management powers of the employer.
“Any act of hostility must imply an excessive use of the power of direction of the employers”.
To verify whether the job change constitutes an act of hostility, the inspecting authority must request information regarding the functions of the new position, compare the characteristics of the jobs under observation, and corroborate the worker’s profile.
In keeping with this, the assignment to a worker of tasks different from those he or she was performing and corresponding to a new job position does not necessarily imply an excessive use of the employer’s power of direction, nor does it imply an act of labor hostility affecting dignity. of the worker.
This constitutes the main administrative jurisprudential criterion that emerges from Resolution No. 599-2022-Sunafil/TFL-First Chamber issued by the First Chamber of the Labor Inspection Court (TFL) of the National Superintendence of Labor Inspection (Sunafil).
With this resolution, said collegiate declares that an appeal for review filed by a sanctioned company is partially founded and defines the guidelines to verify if a change of job constitutes an act of labor hostility.
In the case of the resolution, an inspected company was fined for incurring in a very serious infraction in terms of labor relations, for acts of harassment against a group of workers, typified in numeral 25.14 of article 25 of the Regulations of the General Inspection Law. of Labor (RLGIT), as well as for incurring in a very serious infraction to the inspection work.
The company appealed the resolution of the subintendence with which it is sanctioned and the competent administration of Sunafil declared the appeal unfounded. Given this, the company filed an appeal for review so that its case is known in the TFL.
The First Chamber of the TFL warns of the inspection file that the company sent letters to a group of workers in which they were informed of the decision to contract a specialized entity that exclusively provides the security service, for which the property security area and the The gatekeeper positions they held would cease to be part of the company’s structure and that in order to maintain the employment relationship they would form part of the company’s agricultural production area as operators.
In addition, he warns that the company informed these workers that prior to starting their new work they should go to the human resources offices to be informed of the day and time of the training they would receive on their new functions.
The collegiate also verifies the existence of the contract for the provision of security services signed with the aforementioned entity and that the commissioned inspector determined that the conduct of the company falls within the assumption typified in literal g) of article 30 of the Single Ordered Text ( TUO) of the Labor Productivity and Competitiveness Law (LPCL).
However, from the review of the inspection file, the TFL does not notice that the commissioned inspector has determined or requested information on the functions of the new job, nor that he has made the comparison of the characteristics of the jobs subject to observation. .
At the same time, it notes that reference is made to the Hazard Identification and Risk Assessment matrix (IPER) of said position and that the commissioned inspector does not corroborate the profile of each worker, in order to support the possible affectation of dignity as workers.
From what was verified by the commissioner, the Sunafil Court verifies that the company provided training to the aforementioned workers in the new job.
Regarding the occupational medical examination for the position of operator to the affected workers, the First Chamber of the TFL verifies that this was carried out after the new functions began and that with the exception of one of the workers, who has work restrictions, the others are fit to perform the duties of the position.
Therefore, it concludes that the mere reference to the delay in carrying out medical examinations cannot be considered an act that affects the dignity of a worker, and that this constitutes an act of hostility.
Based on the foregoing, the TFL considers that any act of hostility must imply an excessive use of the employers’ power of direction; but that in the present case it is not verified that the commissioned inspector has reliably substantiated that the behavior of the company constitutes an excessive exercise of said powers, as well as that the measures adopted imply the affectation of the dignity of the affected workers.
Consequently, it does not verify the configuration of the imputed infraction typified in numeral 25.14 of article 25 of the RLGIT, leaving without effect –among other reasons– the sanction imposed on the company and declaring the appeal for review partially founded.
Excess in faculties
Article 30 of the TUO LPCL establishes that it is an act of hostility comparable to dismissal: “b) The unjustified reduction of remuneration or category; […] g) Acts against morality and all those that affect the dignity of the worker”, warns the Court of Sunafil. In this regard, the First Chamber of the TFL accepts the legal position of the labor lawyer Jorge Toyama, who points out that “acts of hostility are the cases where the employer exceeds his management powers and, therefore, can be controlled by the workers. In this regard, it should be noted that in only certain cases the changes in working conditions can be challenged by workers and could qualify as acts of hostility in our legal system.
Source: The Peruvian