The worker’s change of position must be supported objectively and reasonably. In addition, it must be previously communicated. Otherwise, aggressive conduct in labor matters is incurred.
Changing a worker’s headquarters without just cause and without prior communication constitutes an act of hostility.
This is the main administrative jurisprudential guideline that emerges from Resolution No. 845-2022-Sunafil/TFL-First Chamber, issued by the First Chamber of the Labor Inspection Court (TFL) of the National Superintendence of Labor Inspection (Sunafil), warns Benites, Vargas & Ugaz Abogados in its recent Labor Bulletin.
With this resolution, the TFL declared unfounded an appeal for review filed by a company dedicated to poultry farming within an administrative sanctioning procedure and delimits a cause of hostility.
In the case that is the subject of the resolution, based on a complaint, a poultry company was inspected by the labor supervisory authority and fined the total sum of 23,144 soles for having incurred in two very serious infractions. One in the matter of labor relations for having committed acts of hostility, having changed a worker from a security guard position to a steering wheel position on the farm in a discriminatory manner and without having been notified of the change, typified in numeral 25.15 of article 25 of the Regulation of the General Labor Inspection Law (RLGIT). The other infraction referred to the inspection work, for failing to comply with a requirement measure, typified in numeral 46.7 of article 46 of the RLGIT.
The company appealed the subintendence resolution through which it was sanctioned and the competent Sunafil administration declared the appeal partially founded, annulling the sanction imposed for the infraction of the inspection work.
Given this, the company filed an appeal for review alleging that the transfer of the worker was due to an objective cause, based on current regulations, without suffering any affectation as a result of the transfer, which was of a temporary nature, being to date in their original position.
In addition, it argues that the rotation in reference was communicated to the worker in writing, due to said change due to the situation that the company was going through due to covid-19 and the repeal of the new agrarian law.
When hearing the case under review, the TFL does not notice that in application of the ius variandi, seen as a component of the exceptional order directive faculty that the employer has, the worker has been informed of the rotation to which he was going to be subject.
The referee also does not warn that the objective reasons that motivated such rotation have been demonstrated. In the inspection file there is only a report through which the corresponding administrator informs the company’s Human Resources department of the need for personnel, without further detail or justifying the change of positions.
Rather, the First Chamber of the TFL warns of the facts found in the respective infraction record that the worker involved indicates to the commissioner inspector that at the time of the inspection of the company he was working in one of the farms, in the post of security guard night shift, located very far from his home, which generated a mobility cost of 23 soles per day, which exceeded by far the amount of 10 soles that the company recognized for all concepts.
Therefore, the Court of Sunafil determines that the fact that the worker has been changed from job to the production area as a flyer in a farm and after his claims (via notarial letter) has been relocated to a job of security guard (similar to the one he performed on the farm), but in a facility far from his home, without prior communication or objective justifications, constitutes a case of abusive exercise of the ius variandi.
In the opinion of the TFL, the subsequent decision of the company to rotate to work at a facility far from his home after the claim for the change of job -without justifying such decision objectively or communicating it in advance to the worker- constitutes the subjective element that characterizes hostility. The Court of Sunafil shares the analysis of the previous instances regarding the commission –by the company– of the behaviors proscribed in paragraphs c) and g) of article 30 of the Single Ordered Text (TUO) of the Law of Productivity and Labor Competitiveness (LPCL), as the worker involved changed his job without prior notice or specific training (affecting his dignity), and later relocated to a farm after the claims for the change of job.
Impact and recommendations
Based on this resolution, labor activist Jorge Luis Acevedo Mercado warns employers and workers that to date Sunafil receives and investigates complaints of acts of hostility. Therefore, he advises employers not to misuse their power of direction. If the employer exercising the ius variandi wants to change a worker’s job, he needs to support the need for the change (objective element) and prove the reasonableness of the measure (subjective element) so as not to unduly affect the worker, he explained. In this context, he indicated that the worker must be informed in advance not only of the change of position, but also of the sustenance of the change. This taking into account that, if the change of position is not carried out reasonably, the authority will presume that there is a deliberate purpose of harming the worker, he pointed out. In such a way that if a worker is the subject of a change of position without any justification, he or she may opt for the procedure of cessation of the act of hostility and then go to the Judiciary or, through a complaint, before Sunafil to carry out the investigation. corresponding, added the expert who works as a partner of Benites, Vargas & Ugaz Abogados.
Source: The Peruvian