If it is considered an arbitrary or invalid dismissal, the worker must receive compensation and even demand his replacement.
The Ministry of Labor and Employment Promotion (MTPE) reported that every worker who is dismissed must know that such termination of employment must be motivated and carried out in compliance with the foreseen causes, which may be incurring in serious misconduct, whether they are of conduct or performance.
If this is not the case, the dismissal may be considered arbitrary or null; and, according to each situation, the worker may receive compensation or have the right to demand his replacement at his workplace.
The arbitrary dismissal can be uncaused when the employer does not express any reason that has motivated the termination of employment of the worker; or unjustified, when the dismissal has a supposed reason, but this cannot be proven in the judicial process.
In the latter case, the worker can claim compensation, while in uncaused dismissal, he could claim a replacement.
Meanwhile, a dismissal will be categorized null when it affects fundamental rights such as:
a) Not be discriminated against for reasons of origin, race, sex, language, religion, opinion, economic condition or of any other nature, in accordance with article 2 of the Political Constitution of Peru.
b) Prenatal rest periods for the surrogate mother and postnatal rest periods for the nursing mother, provided that the employer does not prove the existence of just cause for dismissal.
c) Membership in a union or participation in union activities.
In the case of invalid dismissal, the affected worker may sue his employer for both his reinstatement and compensation, through a labor or even constitutional process.
For its part, fraudulent dismissal is one that, even when the employer complies with the imputation of a cause, has the following vices:
a) The dismissal is based on non-existent, false or imaginary facts;
b) Or the principle of typicity is violated by attributing to the worker faults not legally foreseen
c) As well as when acting with fraud presenting false evidence fabricated for the occasion.
Also in this situation, the worker has the right to be compensated and replaced via a labor process.
Cases comparable to dismissal or “de facto dismissal” are those acts that the employer can carry out to harm the worker and that may seem based on management capacity, when in fact they are acts of hostility that seek to lead to the termination of the employment relationship. .
The following cases are considered acts of hostility comparable to dismissal:
a) The lack of payment of the remuneration in the corresponding opportunity, except for reasons of force majeure or fortuitous event duly verified by the employer;
b) The reduction of the category and remuneration. Likewise, non-compliance with objective requirements for the promotion of the worker.
c) The transfer of the worker to a place other than the one in which he habitually provides services, with the purpose of causing him harm;
d) Failure to observe hygiene and safety measures that may affect or endanger the life and health of the worker;
e) The act of violence or serious lack of words to the detriment of the worker or his family;
f) Acts of discrimination based on origin, race, sex, language, religion, opinion, economic condition or of any other nature;
g) Acts against morality and all those that affect the dignity of the worker.
h) The unjustified refusal to make reasonable adjustments in the workplace for workers with disabilities.
Source: The Peruvian