An incorrect classification of a position of this magnitude should not limit appeal to the judicial authority to challenge such a name, regardless of the expiration period set to do so.
In the appointment or promotion of the worker, the law does not protect the abuse of rights or simulation.
The worker does not qualify as trusted personnel if they do not have direct contact with the employer or management personnel, nor do they have access to industrial, commercial or professional secrets and, in general, to confidential information.
Nor if he does not issue opinions or reports to the management staff, which contributes to the formation of business decisions.
This was determined by the Supreme Court of Justice when applying article 43 of the Single Ordered Text (TUO) of Legislative Decree No. 728, approved by Supreme Decree No. 003-97-TR, in the judgment corresponding to Labor Cassation No. 4732-2020 Lima issued by the Second Chamber of Transitory Constitutional and Social Law of the highest judicial instance.
With such ruling, said Supreme Chamber declares unfounded that appeal filed by a defendant company within an abbreviated process of job reinstatement and defines an improper assumption of a trusted worker.
In the case that is the subject of the aforementioned labor cassation, a former employee of a company files a claim for reinstatement for fraudulent dismissal, also requesting the payment of costs and costs of the process.
He alleges that since he joined the defendant company, he worked as an employee not subject to trust and that, as of February 2017, he was fraudulently classified as such, without any change in duties, remuneration, working hours , nor others; until December 12, 2018, he was fired under a trust withdrawal.
The specialized labor court that heard the case declared the claim well founded, a first instance judicial decision that was confirmed by the competent superior labor court, before which the defendant company filed an appeal for annulment.
The company argues that the superior collegiate committed a regulatory violation due to non-application of article 61 of Supreme Decree No. 001-96-TR, which approves the Regulations of the Employment Promotion Law.
Upon taking cognizance of the case in labor cassation, the Supreme Chamber notes that the labor law regulates the category of trusted worker, making a distinction between management personnel and trusted personnel.
In this regard, article 43 of the TUO of Legislative Decree No. 728, specifies that trusted workers are those who work in personal and direct contact with the employer or management personnel, having access to industrial, commercial or professional secrets. and, in general, to confidential information. Likewise, it is about those whose opinions or reports are presented directly to management personnel, contributing to the formation of business decisions, details the supreme court.
Regarding the expiration period to appeal to the judicial authority to nullify the qualification of trusted worker that is considered improper invoked by the company, the supreme collegiate mentions that, despite the provisions of article 61 of Decree Supreme Court No. 001-96-TR, it is necessary to take into account that the right of workers to effective judicial protection granted by virtue of the provisions of the catalog of rights of the Constitution cannot be restricted, since the Law does not protect fraudulent or simulated use of its institutions.
Specifically, Labor Law, for the specific case, provides in article 44 of the TUO of the Labor Productivity and Competitiveness Law, second paragraph, that “(…) In the appointment or promotion of the worker, the Law does not cover abuse of rights or simulation. (…)”, details the supreme room.
In this context, the supreme court determines that the qualification of the job position of the plaintiff ex-employee (property operations analyst) as one of “trust” does not respond to the very nature of the service provided.
Meanwhile, beyond the general trust that extends to all employment relationships, there is no evidence that in their functions performed, such as: managing expropriations, identifying and creating asset regularization projects, among others indicated in the job profile, and/or also the tasks of managing properties and real estate and others indicated by the plaintiff, tasks of a trusted worker are carried out.
Even less is there evidence that the plaintiff has worked directly with the employer, or his management personnel; nor that in the condition of him knowing from a direct and immediate source the information of a reserved nature, he infers the supreme room.
Less, he adds, that he has presented reports or issued opinions that have contributed to the organizational, administrative and economic development of the defendant company.
Thus, the supreme collegiate concludes that an improper qualification of a position of trust, as in this case, should not limit the plaintiff to resort to the judicial authority to challenge said denomination.
This regardless of the expiration period that it has to do so, since, by accepting the defendant’s thesis, an abuse of Law would be covered, since it is the defendant herself who has qualified the plaintiff as trusted personnel, when such a condition It is not reflected in reality.
Therefore, the Supreme Chamber determined that the superior collegiate did not infringe Article 61 of Supreme Decree No. 001-96-TR, thus declaring the labor appeal unfounded.
In accordance with article 61 of Supreme Decree No. 001-96-TR, which approves the Regulations of the Employment Promotion Law, workers whose positions are improperly classified as management or trust, may appeal to the judicial authority, to render said qualification without effect, as long as the claim is filed within 30 calendar days following the respective communication. The qualification of management or trust positions is a formality that the employer must observe, refers to article 60 of said regulation. While article 43 of the TUO of Legislative Decree No. 728, specifies that the management personnel is the one who exercises the general representation of the employer before other workers or third parties, or who replaces them, or shares with them the functions of administration and control or whose activity and degree of responsibility depends on the result of business activity.
Source: The Peruvian