Suprema demands appropriate evidence to demonstrate the abandonment of work




Absence from the work center acquires relevance, classifying it as a serious offense, only when it is unjustified, warns the highest court.

The abandonment of work, as a serious offense for the termination of the employment relationship, must be duly accredited with suitable evidence that demonstrates it in an indubitable way.

This constitutes the main jurisprudential guideline of the judgment handed down in Labor Cassation No. 32466-2019 East Lima, issued by the Second Supreme Chamber of Transitory Constitutional and Social Law. This declares unfounded that appeal filed by a company sued within an ordinary labor process for reinstatement due to unjustified dismissal and another.


In this case, a worker dismissed for allegedly having committed a serious misdemeanor of job abandonment files a lawsuit against the employing company to declare the existence of an unjustified dismissal against him and to order reinstatement in his position. worked.

In addition, he requests that a fraudulent dismissal be declared against him and that his reinstatement be ordered to his job, as well as the respective payment of costs and costs of the process.

The labor court declared the claim for reinstatement due to unjustified dismissal well founded, for which reason it ordered that the defendant company comply with reinstating the plaintiff in his job, with the same working conditions existing at the time of the dismissal.

In turn, it ordered the payment of the costs and costs of the process by the defendant.

On appeal, the competent higher labor court confirmed that decision on similar grounds.

In view of this, the defendant company filed a labor cassation appeal, alleging that the superior collegiate, when issuing its sentence, incurred in a regulatory violation due to non-application of article 22 and literal h) of article 25 of the Single Ordered Text (TUO) of Legislative Decree No. ° 728, Labor Productivity and Competitiveness Law (LPCL), approved by Supreme Decree No. 003-97-TR.

In accordance with article 22 of that TUO, for the dismissal of a worker subject to the private activity regime, who works four or more hours a day for the same employer, the existence of just cause contemplated in the law and duly proven.

The latter in view of the fact that the just cause may be related to the capacity or conduct of the worker and that the demonstration of the cause corresponds to the employer within the judicial process that the worker could file to challenge his dismissal.

While in accordance with literal h) of article 25 of the same TUO, abandonment of work for more than three consecutive days, unjustified absences for more than five days in a period of 30 calendar days or more than 15 days in a period of 180 calendar days, whether or not they have been disciplinary sanctioned in each case, constitute a serious offense. Likewise, repeated lateness, if it has been accused by the employer, provided that previous disciplinary sanctions of written reprimands and suspensions have been applied.

This taking into account that a serious misdemeanor constitutes the infringement by the worker of the essential duties that emanate from the contract, of such a nature that it makes the subsistence of the relationship unreasonable.


Upon taking cognizance of the case in labor cassation, the supreme court warns that the dismissal must be based on a just cause, therefore the power that the employer has within the element of subordination is limited.

So much so that our legislation has contemplated in the TUO of Legislative Decree No. 728 the just causes of dismissal related to the capacity of the worker and those related to the conduct of the worker, he details.

In relation to the serious fault, provided for in the aforementioned subparagraph h), the supreme collegiate establishes that the abandonment of work is configured when the worker, without any justification, stops attending his workplace for more than three consecutive days, or for more than five non-consecutive days in a period of 30 calendar days or more than 15 days in a period of 180 calendar days, which denotes that the worker has a conduct tending to breach the employment contract by himself.

Additionally, it warns that in article 37 of Supreme Decree No. 001-96-TR, which approves the Regulations of the Employment Promotion Law, it is indicated that in order to avoid job abandonment, any absence from the employment center work must be brought to the attention of the employer, stating the reasons that motivated it, within the term of the third day after it occurred, plus the term of the distance. The period will be counted by working days, understanding as such the working days in the respective work center, the regulation specifies.

In this context, the supreme court determines that absence from work acquires relevance, classifying it as a serious offense, only when it is unjustified. Otherwise, the justification prevents at all points from conceptualizing lack of attendance or punctuality as a cause for dismissal, he points out.

It also affirms that by justification it will be necessary to understand the existence of facts independent of the will of the worker and that he is not, in any way, guilty, that prevent him from attending work or doing it punctually.

Employer Power

In this regard, the supreme court points out that although employers have the power to dismiss the worker for having set up a serious offense, said infraction must be supported by sufficient evidence, in accordance with the provisions of article 26 of the TUO of Legislative Decree No. #728, L.P.C.L.

In accordance with this article, serious offenses are configured by their objective verification in the labor procedure, regardless of the criminal or civil connotations that such facts may have.

Consequently, the justification must be supported by suitable evidence that undoubtedly corroborates the aforementioned abandonment, concludes the court.


In the case that is the subject of the aforementioned labor cassation, the Supreme Court considers that the dismissal of the plaintiff has been accredited without the defendant company having been able to demonstrate that the termination of the employment relationship has been determined by a just cause and proven in relation to the capacity or the conduct of the dismissed worker.

The evidence provided to the process does not generate conviction to conclude that the plaintiff committed the serious offense provided for in letter h) of article 25 of the limited norm, the supreme court specifies. In line with this, the Supreme Chamber verifies that the plaintiff was prevented from entering his workplace and that the defendant company did not comply with the dismissal procedure established in articles 31 and 32 of the LPCL TUO. For all these reasons, the Supreme Court declared the above-mentioned labor cassation appeal unfounded.


Source: The Peruvian

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