The motivation in the infringement records must contain the assessment of the pertinent instruments provided by the inspected party.
The motivation in the acts of infringement must contain the assessment of the pertinent instruments.
The sanctioning bodies must verify whether during the labor inspection the labor inspectors have considered the means of proof presented by the inspected (employers), motivating their proposals or justifying their decisions.
This, taking into account that the motivation in the infringement records must contemplate the assessment of the pertinent means of proof that the inspected party has provided to prove the legality of its behavior.
This was established by the Labor Inspection Court (TFL) of the National Superintendence of Labor Inspection (Sunafil), in a full session, as administrative precedents of obligatory observance, in terms of evidence produced by the employer and its assessment, through the Resolution of Full Chamber No. 002-2023-SUNAFIL/TFL.
In this context, the administrative collegiate determines that the means of proof that are analyzed in the labor inspection include the party reports presented by the inspected subject, as long as they are pertinent documentation. That is to say, that it constitutes an adequate instrument for the appreciation and valuation of the components of a specific case, in accordance with the duty of good faith before the administration, he points out.
Thus, for example, the Sunafil Court indicates that in terms of safety and health at work, employers are obliged to carry out and implement the obligations in terms of risk prevention, for which reason the personnel under their charge , in accordance with its functions, it can issue reports that must be examined by the acting inspectors as means of proof provided by the interested party.
However, precise, the presentation or display of irrelevant information; not conducive to proving any conduct or fact subject to analysis or not suitable for it, assuming a pure documentary surcharge, it may be classified as an act contrary to the duty of collaboration, in accordance with the events that occurred in each case.
In this regard, the TFL reaffirms that the affidavits, reports and communications in general submitted by the interested party –whether by representatives of the company or by subordinate personnel of the supervised subject, including the complainant himself– are not sufficient instruments to generate conviction to their favour, whether it is exposed in the inspection or during the disciplinary procedure.
This, following a large stream of resolutions issued by the First Chamber of the Sunafil Court, such as Resolutions No. 127-2022, 1187-2022, among others, and in light of the principles of veracity and material truth expressly recognized in the Single Ordered Text (TUO) of the General Administrative Procedure Law (LPAG). And, due to the asymmetric nature of the employment relationship, which places the declarant in a special legal relationship with the interested party, details the administrative collegiate.
In this way, the TFL also determines as a mandatory compliance criterion that such instruments are not suitable to counteract the presumption of certainty referred to in article 16 of the General Labor Inspection Law (LGIT) in favor of infringement acts. ; but they must be assessed by inspectors in the performance of their duties.
Impulse of trade
The Sunafil Court notes that the LPAG TUO includes this evidentiary rule by providing that the burden of proof is governed by the so-called “principle of ex officio impulse”, by virtue of which it is the authority who corresponds to “direct and promote the procedure ex officio and order the performance or practice of the acts that are convenient for the clarification and resolution of the necessary issues.”
In line with this, the TFL accepts the legal position of the specialist in administrative law Juan Carlos Morón Urbina, who states: “the principle of ex officio impulse imposes on the Administration the obligation to verify and prove the facts that are imputed or that must be serve as a basis for the resolution of the procedure, as well as the obligation to proceed with the carrying out of the evidentiary activity itself when the procedure requires it”.
Thus, the Sunafil Court sets this doctrinal criterion as an administrative precedent of obligatory observance.
The Sunafil Court points out that the behavior of all the components of the inspection system with respect to the fundamental right to test of the inspected (and third parties with an interest) must be observed so that the powers exercised by inspectors and bodies of the sanctioning procedure are executed in terms compatible with due administrative procedure.
Therefore, it also establishes as a mandatory precedent that the evaluation of the evidence provided makes it possible to guarantee respect for due administrative procedure. This, in accordance with the ruling of the Constitutional Court (TC) relapsed in File 2698-2012-PA/TC, specifies.
Source: The Peruvian