Changing a remunerative benefit for another that does not have that nature constitutes an unfriendly act for the worker.
The substitution of a remunerative bonus for another bonus that does not have this characteristic, even if it is of a greater amount, constitutes an act of labor harassment to the extent that it is a reduction in remuneration.
This constitutes the main administrative jurisprudential guideline that emerges from Resolution No. 601-2022-Sunafil/TFL-First Chamber issued by the First Chamber of the Labor Inspection Court (TFL) of the National Superintendence of Labor Inspection (Sunafil).
With this resolution, the Court of Sunafil declares unfounded an appeal for review filed by a company within an administrative sanctioning procedure and defines a cause of labor hostility due to a reduction in remuneration.
In the case that is the subject of the resolution, an inspected company was fined for committing a very serious infraction in terms of labor relations, for acts of harassment consisting of the reduction of remuneration of a former worker, typified in numeral 25.14 of article 25 of the regulations of the General Law of Labor Inspection (RLGIT).
The company appealed the subintendence resolution through which it is sanctioned and the competent Sunafil administration declared the appeal filed unfounded.
Given this, the company filed an appeal for review, alleging –among other reasons– erroneous application of paragraph b) of article 30 of Supreme Decree No. 003-97-TR.
In accordance with this numeral, an unjustified reduction in remuneration or category constitutes an act of hostility comparable to dismissal.
In this context, numeral 25.14 of article 25 of the Regulations of the General Labor Inspection Law (RLGIT) classifies acts of hostility as a very serious infraction in terms of labor relations.
Upon learning of the case under review, the First Chamber of the TFL warns that the company abolished the remuneration concept called “Variable Bonus” that it granted to the affected former employee since February 2018, which caused her to decrease her remuneration, since the concept that was incorporated to replace it, called “Food Benefit Bonus” (food voucher), does not have the same nature. In other words, it is not remunerative, so it is not the basis for calculating labor benefits such as bonuses, compensation for time of service (CTS), the administrative collegiate specifies.
Hence, the Court of Sunafil deduces that the argument that the concept for “Food Benefit Bonus” is greater than that of the “Variable Bonus”, does not invalidate the infraction imputed by the commissioned inspector and the sanctioning authority that fined the inspected company.
Since this new concept does not have a remunerative nature, it does not have an impact on the social benefits of the former worker, as the “Variable Bonus” did, which she previously received.
In addition, the First Chamber of the TFL warns that the “Food Benefit Bonus” is granted as of August 2020 in a sum of 73.67 soles; which is deducted from the former worker in that amount, as stated on her payslip for that month.
At the discretion of the administrative collegiate, this evidences what was determined by the commissioned inspector. That is, that this concept, unlike the “Variable Bonus” does not have a remunerative nature, he points out.
Therefore, the Sunafil Court determines that the granting of the “Food Benefit Bonus” far from configuring an improvement for the worker, constitutes a salary reduction, that is, a reduction in her remuneration.
In this sense, it infers that there has been an erroneous interpretation of literal b) of article 30 of Supreme Decree No. 003-97-TR as alleged by the sanctioned company. On the contrary, it is appreciated that the company has incurred in an act of hostility, said conduct typified in numeral 25.14 of article 25 of the LGIT, explains the First Chamber of the TFL.
Therefore, this administrative collegiate concludes that the principle of typicity has not been affected, given that administrative responsibility has been determined based on the type of offender provided for in our social and labor law.
Consequently, the Sunafil Court rejects –among other reasons– the arguments aimed at questioning this point, confirming the sanction imposed on the company for the infraction typified in numeral 25.14 of article 25 of the RLGIT.
In accordance with the TFL regulations, the purpose of the appeal for review is the adequate application of the socio-labor legal system to the specific case and the uniformity of the pronouncements of the Labor Inspection System. It is based on the non-application, as well as on the erroneous application or interpretation of labor law regulations, or on the unmotivated departure from the precedents of mandatory observance of the Sunafil Court, warns the First Chamber of the TFL. In this sense, it states that the appeal for review is filed against the second instance resolutions issued by authorities of said system that are not of national competence, which sanction the very serious infractions provided for in the regulations of the General Labor Inspection Law, approved by Supreme Decree No. 019-2006-TR and its amending regulations.
Source: The Peruvian