Under no circumstances should company personnel be prevented from exercising their right to defense prior to the issuance of sanctions, even in the case of reprimands and suspensions.
“The sanctioning power of the company should not be exercised without safeguarding constitutional rights.”
The imposition of a sanction on the worker without having previously notified him of the facts that support the disciplinary measure in order for him to present his defenses constitutes an act of hostility.
This constitutes the main administrative jurisprudential guideline that emerges from Resolution No. 810-2022-Sunafil/TFL-First Chamber issued by the First Chamber of the Labor Inspection Court (TFL) of the National Superintendency of Labor Inspection (Sunafil), warns Benites, Vargas & Ugaz Abogados in its recent Labor Bulletin.
With this resolution, the collegiate declares unfounded an appeal for review filed by a company within a sanctioning administrative procedure.
In the case that is the subject of the resolution, an inspected company was fined for having sanctioned a worker with suspensions and a written reprimand without having given him the opportunity to make his defenses, which for the inspecting authority constituted an act of hostility classified as an infraction. very serious in terms of labor relations in numeral 25.14 of article 25 of the Regulations of the General Labor Inspection Law (RLGIT).
The company appealed the resolution of the subintendency through which it was sanctioned and the competent Sunafil intendancy declared its appeal unfounded, for which reason it filed an appeal for review so that the case could be seen by the Sunafil Court.
Upon taking cognizance of the matter under review, the First Chamber of the TFL recognizes – as maintained by the labor lawyer Javier Neves – that the power of direction that the employer acquires from the employment contract is reflected in some powers and is subject to certain limits. , identifying as part of the content of this power the power to supervise and sanction the worker.
In this context, the collegiate warns that article 9 of the Single Ordered Text (TUO) of the Labor Productivity and Competitiveness Law, Legislative Decree No. 728, approved by Supreme Decree No. 003-97-TR, states that due to the subordination , the worker provides his services under the direction of his employer, who has the power to regulate the work by regulation, issue the necessary orders for the execution of these and sanction disciplinary action, within the limits of reasonableness, any infraction or breach of obligations by the worker.
However, the Sunafil Court notes that in ground 6 of the sentence handed down in File No. 0026-2013-PA/TC, the Constitutional Court (TC) establishes that within a private disciplinary proceeding it is necessary ” [notify] previously the [implicated] about the faults that are imputed to them, in order for them to exercise their defense. [Thus, they must] notify them in writing of the charges against them, accompanied by the corresponding supporting evidence, and grant them a reasonable period of time so that –through the expression of the corresponding defenses– they can fully exercise their legitimate right of defense.” Since the Constitutional Court considers that the rights that make up due process -such as the right to defense- are not only applied in judicial processes, but also in administrative, private corporate and, in general, in any process or procedure in which materially rights are discussed or restricted, specifies this collegiate.
At the same time, the Sunafil Court notes that in the seventh foundation of the judgment corresponding to Labor Cassation No. 4497-2017-Lima, the Second Chamber of Transitory Constitutional and Social Law of the Supreme Court of Justice establishes that the power sanction that the company has by virtue of its management power “should not be exercised indiscriminately or unreasonably, much less without safeguarding the rights recognized by the Political Constitution of Peru.”
In line with these jurisprudential scopes and the aforementioned regulations, the TFL determines that “under no circumstances, should the worker be prevented from exercising his right of defense prior to the issuance of sanctions issued by his employer, such prerogative being one of universal”.
In the case brought to its attention, the Sunafil Court verifies that the affected worker was not granted the possibility of knowing in advance the facts for which he was subject to the sanctioning power of his employer, nor the right to present his discharges so that they are adequately valued, without a preconception in this regard.
In addition, it states that since the written reprimand against the affected worker has not been rendered null and void, in accordance with the inspection measure imposed on the inspected company, the act of hostility is preserved.
Therefore, the TFL declares the review appeal unfounded, confirming the sanction imposed on the company.
In the opinion of the labor lawyer Jorge Luis Acevedo Mercado, the Sunafil Court establishes the aforementioned administrative jurisprudential criterion as a development of the constitutional right to defense and the right to due process.
For the TFL, it is important that, in keeping with these rights, even in the private sphere, every worker who is the subject of a disciplinary procedure or who is going to be subject to a sanction has the right to defense, whether it is a suspension or reprimand, he comments Acevedo agreeing with the criteria assumed by the TFL.
Even more so because the Labor Productivity and Competitiveness Law does not establish a prior procedure for defense, imputation and disclaimers when it comes to sanctions of suspension and reprimand, only in the case of dismissal.
Acevedo warns that with this pronouncement of the TFL, the criteria that the worker has the right to exercise his defense within due process when his employer intends to sanction him with a reprimand or suspension is already consolidated, both in the judicial and administrative spheres. .
Source: The Peruvian