If the employer does not register the overtime work to prove it, whoever invokes the right to be paid for the overtime work must minimally demonstrate through other means its real and effective performance.
To the extent that the employer has the obligation to pay overtime and record overtime work to prove it; In the event that such registration has not been made, either because said work did not exist or because it is not recognized, whoever invokes the right to be paid for overtime work must minimally prove its real and effective performance through other means.
This constitutes the main jurisprudential guideline that emerges from the ruling corresponding to Labor Cassation No. 21829-2019 La Libertad, issued by the Second Chamber of Transitory Constitutional and Social Law of the Supreme Court of Justice.
With this ruling, the highest judicial instance declared the appeal filed by a company within an ordinary process of payment of social benefits and others to be founded in part, and ruled on the accreditation of overtime work.
In the case that is the subject of the aforementioned labor cassation, a worker sues a company requesting the reimbursement of a bonus for night work, overtime worked, Sundays and holidays worked, and extraordinary bonus, in addition to the payment of other benefits plus legal interest, costs of the process and professional fees.
The labor court that heard the case declared the claim partially founded and on appeal the competent labor court confirmed that first instance decision, although it modified the amounts of money that the company was obliged to pay the plaintiff worker.
In view of this, the defendant company filed an appeal for labor cassation, alleging that the superior collegiate, when issuing its sentence, incurred in a regulatory violation due to non-application of article 10-A of Supreme Decree No. 007-2002-TR, Single Ordered Text (TUO) of the Law on Working Hours, Hours and Overtime Work, and normative infraction due to non-application of article 27 of Supreme Decree No. 008-2002-TR, Regulation of the TUO of that law.
Upon taking cognizance of the case in labor cassation, the supreme court warns that the worker demands overtime consisting of overtime and holidays supposedly worked from 2011 to February 2017, supporting his claim solely and exclusively on the exhibition that he offers so that the company The defendant submits the records, files and control notebooks of the entire labor record, without having supported the extra days in addition to those already paid through pay slips and forms.
While it verifies that the defendant company considers that any extreme of extraordinary days that is older than five years from the date of registration, must be declared unfounded, since it understands that before the entry into force of Supreme Decree No. 004-2006 -TR, there was no evidentiary obligation to control the entrances and exits, and there may be evidence to the contrary, which is the responsibility of the plaintiff.
Faced with this, the upper court protects the extreme of overtime and holidays worked for the entire record of services, based on the presumption of obstructive conduct by the defendant company, by not exhibiting the required documentation such as the hours control records. departure and arrival times; details the supreme collegiate.
However, the highest judicial instance considers that, despite the procedural conduct of the parties, it is appropriate to apply articles 6 and 9 of Supreme Decree No. 004-2006-TR, which dictates the provisions on the attendance and exit control record in the labor regime of private activity, establishing that the employer has the obligation to keep attendance records for up to five years after being generated.
In such a way that, to achieve equity between the parties, the supreme court determines that in the present case there is an express obligation imposed by the related law for the employer to keep the attendance records for up to five years after they are generated.
Under said analysis, the supreme court considers that the alleged presumption regarding the work performed on holidays, as well as daily overtime work, will be applied only for the period of five years prior to the date of termination, and must be liquidated by the judge of the cause in execution of sentence, as well as its incidents.
This decision is obtained considering the scarce evidence presented, and carrying out a balanced analysis between the legal obligation of the employer to register an attendance control and the burden of proof of the worker to prove the overtime work with other means, explains the supreme collegiate.
Due to these considerations, the Supreme Court declares the aforementioned labor cassation appeal partly founded.
In accordance with article 10-A of Supreme Decree No. 007-2002-TR, the employer is obliged to record the work provided overtime by using safe and reliable technical or manual means. This, taking into account that the deficiency in the registration system will not prevent the payment of work done in overtime, if the worker proves its real and effective performance through other means. Whereas article 27 of Supreme Decree No. 008-2002-TR states that, for the purposes of recording overtime hours worked, as indicated in the aforementioned article 10-A, the forms, work slips, payment or other appropriate means.
Source: The Peruvian