Sala Suprema en casación: El pago de utilidades está excluido de los devengados




The replaced worker does not participate in the profits generated during the period in which he did not perform effective work.

This constitutes the main jurisprudential guideline that emerges from the ruling corresponding to Labor Cassation No. 34683-2019 Lima, issued by the Second Chamber of Transitory Constitutional and Social Law of the Supreme Court of Justice, warns Benites, Vargas & Ugaz Abogados in its recent Labor Bulletin.

With this ruling, the highest judicial instance declares the appeal filed within an ordinary process of payment of utilities to be well founded.


In the case that is the subject of the appeal, a worker of a mining company demands the payment for participation in the profits for the period in which he did not work due to null dismissal, plus the payment of interest, costs and costs of the process.

The corresponding labor court declared the claim unfounded, a judicial decision that was revoked by the competent superior labor court, which declared it founded.

In view of this, the defendant mining company filed an appeal for annulment alleging that the superior collegiate, when issuing a sentence, committed a regulatory violation due to an erroneous interpretation of article 4 of Supreme Decree No. 009-98-TR, Regulation of Legislative Decree No. 892, modified by Supreme Decree No. 007-2018-TR.

When hearing the case in cassation, the supreme court warns that the issue to be resolved is to determine whether the payment of profits to the replaced worker due to null dismissal for the period in which he was found without employment relationship, and did not provide effective work.

This, taking into account that the participation of profits constitutes a right recognized in article 29 of the Constitution, whose purpose is to seek the identification of workers with the company and thereby achieve an increase in production and productivity in the work centers. While in application of Legislative Decree No. 892 and its regulations, the supreme court advises that in order to distribute profits among workers, 50% of this benefit is calculated according to the days actually and effectively worked by each worker.

In turn, it confirms that in cases of null dismissal, one of the effects of this must be taken into account, the payment of accrued remunerations, in accordance with article 40 of the Single Ordered Text (TUO) of Legislative Decree No. ° 728, Labor Productivity and Competitiveness Law, approved by Supreme Decree No. 003-97-TR.

At the same time, the supreme court specifies that in order to determine that a payment to a worker (in money or kind) has a remunerative nature, three conditions must be met.

In the first place, that what is received is in consideration of the worker’s services. Likewise, that it be perceived on a regular basis; and that it be freely available, that is to say that the worker within his scope of freedom can decide the destiny that he grants.

In this context, the supreme court takes into account article 7 of the TUO of Legislative Decree No. 728, Labor Productivity and Competitiveness Law, according to which: “The concepts provided for in articles 19 do not constitute remuneration for any legal effect and 20° of the Single Ordered Text of Legislative Decree No. 650”.

In accordance with article 19 of the TUO of Legislative Decree No. 650, approved by Supreme Decree No. 001-97-TR, the supreme court verifies that no computable remuneration is conceivable for any form of participation in the company’s profits.


Consequently, the Supreme Court determines that profit sharing could not be considered within the accrued remuneration. Especially if for the calculation of the profit sharing, the days worked, of effective provision of work, must be based, which has not happened in the present case, he explains.

In addition, it determines that although article 54 of Supreme Decree No. 001-96-TR considers that the period stopped working due to null dismissal will be considered as effective work for all purposes except for the vacation record; This article does not refer to the fact that this period can be considered for the calculation of profits.

On the contrary, article 5 of Legislative Decree No. 892 that regulates the right of workers to participate in the profits of companies that carry out third-category income activities, as well as article 4 of its regulations establish the obligation to fulfill an effective work day to access this benefit, details the supreme court. They are provisions that do not admit interpretation to the contrary; even more so if from a finalist perspective, paying profits not only aims to make employers participate in the successful results of the business, but also seeks to encourage workers and above all reward them for the effort that will be compensated with the granting of this benefit, he explains.

An advantage that will result in a kind of remuneration additive that will reward the effort of the worker in achieving high productivity for the company, he adds.

Objective that would be altered with the payment of profits to a worker who did not participate in reality with effective work in that common effort, he points out.

For all these reasons, the Supreme Chamber declares the aforementioned appeal founded.


With this sentence, the Supreme Court of Justice consolidates its jurisprudential criteria of excluding profit sharing from the payment of accrued remunerations, indicates the labor lawyer, Jorge Luis Acevedo Mercado.

In addition, it determines as a final criterion that the profits are paid with the aim of remunerating the labor effort deployed by the workers to achieve these, adds the expert.

Therefore, Acevedo considers that it would not be “reasonable” to pay profits to workers who did not contribute to their generation, such as workers laid off for the period that their reinstatement process lasted.

The opposite would mean taking profits from the staff who did contribute to its generation, details the specialist who works as a partner at Benites, Vargas & Ugaz Abogados. In this context, he recommends that companies not include the payment of profits within the accrued remuneration, in the event of null dismissal. He also suggests not firing without just cause, to avoid possible annulments.


Source: The Peruvian

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