The Labor Inspection Court has published 3 new precedents:
A) Minimum criteria on electronic box notification: the case of the employer who accessed this instrument before or during the labor inspection.
13. In this sense, acknowledging the existing discrepancy (which would have to be resolved as soon as more TFL Chambers are implemented), the First Chamber has minimally agreed on an assumption of administrative responsibility: yes, after consulting with the General Ofi ce of Information and Communication Technologies (OGTIC) of SUNAFIL, it is identified that the date of entry of the user of the electronic box (understood, the administrator) is prior to or simultaneous to the information requirement that was the subject of the sanctioning procedure and the user does not complied with registering their respective contact information (through which the complementary alerts to the notification via the electronic mailbox would be deposited).
14. In such a case, the sanction for non-compliance with the information requirement or requirements that have been deposited in the electronic box is appropriate. In this way, the sanction prosecuted by subsection 46.3 of article 46 of the RLGIT is feasible against the administrator who, by negligent omission, fails to register the respective contact in the electronic box, thus preventing the communication referred to in the second paragraph of article 6 of Supreme Decree No. 003-2020-TR
B) Disciplinary measures and dignity at work
22. Thus, in accordance with the resolutions invoked in numeral 16 of this Plenary Agreement, it is necessary to establish the existence of acts of hostility when disciplinary measures are deployed against workers without having followed a procedure that complies with the fundamental rights to defense, to due process or evidence, constitutional rights that must be fully enforced in the employment relationship, in accordance with the third paragraph of article 23 of the Constitution.
23. In this sense, the investigating and sanctioning authority, during the processing of the respective sanctioning procedure, must examine that in the labor inspection where the alleged commission of acts of hostility against workers sanctioned with disciplinary measures is analyzed; It has been verified whether prior to the imposition of the sanction, the employer followed a due process safeguarding the right to defense and evidence; preserving the disciplinary exercise that is fair and respectful of such rights.
C) The evidence produced by the employer and its assessment.
28. In this sense, it should be pointed out that the behavior of all the components of the Labor Inspection System with respect to the fundamental right to test of those inspected (and third parties with an interest) must be observed so that the powers exercised by inspectors and organs of the sanctioning procedure are executed in terms compatible with the due administrative procedure. In accordance with the Judgment cited above, the evaluation of the evidence provided makes it possible to guarantee respect for due administrative procedure.
29. Thus, the sanctioning bodies must verify whether during the labor inspection, the labor inspectors have considered the means of proof presented by the inspected, motivating their proposals or justifying their decisions; being so that the motivation in the Acts of Infringement must contemplate the assessment of the pertinent means of proof that the inspected party has provided to prove the legality of its behavior.
30. From the foregoing, it should be noted that the means of proof that are analyzed in the labor inspection include the party reports presented by the subject inspected, as long as they are pertinent documentation; that is to say, that it constitutes an adequate instrument for the appreciation and valuation of the components of a specific case, in accordance with the duty of good faith before the Administration. Thus, for example, in terms of safety and health at work, employers are obliged to carry out and implement the obligations in terms of risk prevention, so that the personnel under their charge, in accordance with their functions, can Issue reports that must be examined by the acting inspectors as means of proof provided by the interested party. However, the presentation or display of irrelevant information; that is, not conducive to proving any conduct or fact that is the subject of analysis or not suitable for it, assuming a pure documentary surcharge, it may be classified as an act contrary to the duty of collaboration, in accordance with the events that occurred in each case.
31. In this regard, following a large stream of resolutions issued by the First Chamber of the Court, such as Resolutions Nos. 127-2022, 1187-2022, among others, and in light of the principles of veracity and material truth expressly recognized in the LPAG TUO, it should be reaffirmed that the sworn statements, reports and communications in general presented by the interested party —whether by representatives of the company or by subordinate personnel of the supervised subject, including the complainant himself— are not sufficient instruments to generate conviction in their favour, whether it is exposed in the inspection or during the sanctioning procedure. This, due to the asymmetric nature of the employment relationship, which places the declarant in a special legal relationship with the interested party. In this way, the indicated instruments are not suitable to counteract the presumption of certainty referred to in article 16 of the LGIT in favor of infringement acts; but they must be assessed by inspectors in the performance of their duties.
32. In this sense, the TUO of the LPAG includes this evidentiary rule by providing that the burden of proof is governed by the so-called “principle of ex officio impulse”, by virtue of which it is the authority who corresponds to “direct and promote the procedure ex officio and order the performance or practice of the acts that are convenient for the clarification and resolution of the necessary issues. According to Morón Urbina, “the principle of impetus ex officio imposes on the Administration the obligation to verify and prove the facts that are imputed or that are to serve as the basis for the resolution of the procedure, as well as the obligation to proceed to carry out of the probative activity itself when required by the procedure”.
Source: The Peruvian