The administrative collegiate also adopts applicable criteria in order to avoid excessive punishment in labor matters, taking into account the principle of reasonableness.

The Labor Inspection Court (TFL) of the National Superintendence of Labor Inspection (Sunafil) established in a plenary session the administrative criteria that the entities of the Labor Inspection System (SIT) must apply to detect the existence of continuous infractions and avoid excessive punishment in those cases.

In accordance with the Resolution of the Plenary Chamber No. 010-2022-Sunafil/TFL, there will be a continuous infraction in the cases in which the SIT authorities identify the occurrence of more than one conduct (actions or omissions) that constitutes each one, separately. , an infraction and that violate the same precept or precepts of a similar nature (homogeneity of the violated norm or the injured legal right), within a unitary process (against one or more workers by the same employer and repetition of a same typical action guided by the same purpose).

In addition, it must be verified that the company (inspected company) acts with a lasting will (in a lasting and constant manner) and with a spatio-temporal connection, the resolution refers to.

Reasonableness

At the same time, the TFL establishes as a precedent that in such cases it violates the principle of reasonableness, constituting a case of excessive punishment, the consecutive issuance of inspection orders followed on such facts.

Therefore, the Sunafil Court determines that in such cases the administration must accumulate the administrative sanctioning procedures that are generated in a single procedure, when said competence corresponds to a single regional administration of Sunafil.

Instead, it specifies that when the phenomenon is of a supra-regional nature, each regional administration must evaluate its own competence in accordance with the applicable legislation and continue with the respective administrative procedures, independently. This without prejudice to the uniform application of the criteria established by this court to each specific case, points out the TFL

The Sunafil Court notes that the principle of reasonableness is included as a principle of administrative sanctioning power in numeral 3 of article 248 of the Single Ordered Text (TUO) of the General Administrative Procedure Law (LPAG).

This principle seeks to limit the discretion of the administration in the exercise of the sanctioning power, details the administrative collegiate.

Additionally, the administrative collegiate establishes as mandatory observance criteria that, as recognized by legislation, jurisprudence and national doctrine, the infringing type to be applied in continued infractions must be governed by the provisions of the regulations in force at the time the last infraction was committed. Being understood under this criterion the value of the tax unit (UIT), for the calculation of the fine, precise.

Guarantees and rights

The TFL takes into account that in the administrative procedures contained in the General Labor Inspection Law (LGIT) or the Regulation of the LGIT (RLGIT), and in the exercise of the administrative activity of inspection of the servers of the SIT bodies , all the guarantees and rights to the companies contained in the LPAG TUO necessarily apply.

Likewise, in those cases in which the special norm (LGIT or RLGIT) establishes a more favorable regulation for the administered, these are applied instead of the TUO of the LPAG.

This is of special relevance for the determination and exercise of the sanctioning power and the imposition of sanctions, specifies the TFL

For this reason, in his opinion, any action by the public administration – regardless of the qualification it receives – must be in accordance with the principles and content of the LPAG TUO, as a manifestation of the validity of its procedures, materialized in acts administrative costs that cannot be generated in contravention of the Constitution, the laws or the regulations. This is in line with the provisions of numeral 4 of article 10 of the TUO of the LPAG, refers to the Sunafil Court.

Decision

With the aforementioned resolution of the full chamber, the Sunafil Court, after accumulating two files corresponding to the same number of disciplinary proceedings initiated against an inspected company, declares the review appeals filed by it, which was sanctioned for incurring two continuous infractions, unfounded very serious in terms of labor relations and a very serious violation of inspection work.

The TFL warns that the existence of more than one conduct (two omissions) of not having the attendance control record of two periods worked by a worker that would constitute each of them, separately, an infraction that infringes the same precept typified in numeral 25.19 of article 25 of the RLGIT, within a unitary process given that it is carried out against the same worker and by the same company with the purpose of evading the labor regulations applicable to the worker and undermining their labor rights, acting the employer with lasting will.

Source: The Peruvian