Did you know that: In Peru, the dismissal of workers who work 4 or more hours a day is not free. Its origin requires demonstrating just cause contemplated in the law.
If you impute non-existent, false or imaginary facts to a worker. If you impute a lack not foreseen in the law. If you quit a worker. If you make evidence. In these cases the dismissal is called fraudulent.
A.- The termination of the employment relationship
1.- A bulletproof employment contract
Your company has 400 people on the payroll. Would Social Worker be subject to a fixed-term contract (temporary modalities)?. Simulate a temporary hiring, complying with the presentation and payment thereof before the Ministry of labor; It does not guarantee that the employment relationship has had a good starting point, if this is applied to permanent services in your company. A dismissal may motivate the "discovery" of "initial abnormalities" in the employment relationship.
2. - Sanctions and their level: Here is a scheme of sanctions and levels.
| Infringement | It can generate | right to defense | Proof of action |
| Slight faults | Admonition | Not | Verbal or written |
| Fouls | Suspension | Not | Written |
| Serious misconduct | Dismissal | Yes | Only for legal reasons and must be written |
3.- If you want to reduce personnel: If you want to reduce personnel you can:
3.1.- Request the voluntary resignation of the workers in exchange for a “graceful compensation” or “assignment for the constitution of a company”.
3.2.- In case of initial resistance of workers to resign voluntarily, the company can:
a.- Start a collective cessation process, the result does not give compensation.
A minimum of 10% of workers is required.
b.- Dismissal without cause. The judicial worker would initiate a replacement process that would take 02 years of trial, without the right to payment of accrued remuneration.
This, if you do not collect your liquidation of social benefits, begins the process of judicial replacement within 60 days after the dismissal (Is the dismissal the end of the story?).
B.- Labor dismissal in Peru: legal and casuistic analysis
A brief comment on a current topic.
1.- The legal dismissal. It is a resolution of the employment contract unilaterally by the employer based on just causes contemplated in the law.
2. And what is a just cause? They are actions or behaviors of the worker that generate a lack of essential duties under his charge, of such intensity that it makes the continuity of the labor relationship unsustainable.
| Just causes of dismissal | |
| Worker capacity | Impairment of physical or mental faculty |
| Poor performance | |
| Unjustified refusal of medical examination | |
| Worker conduct | criminal conviction for intentional crime |
| Disability of the worker | |
| Serious misconduct |
3.- Some details: Not to be mistaken.
Detriment to physical or mental faculty: Not caused by work accident or professional illness.
Poor performance: Compared to the average number of workers.
Unjustified refusal of medical examination: Provided by law (mining companies: pre, permanent and post). Agreed, but decisive for the activity.
4.- Typical behaviors classified as serious offense
4.1.- Failure to fulfill obligations (good faith). Reiteration to not following orders (may be different orders, related to work), as well as untimely stoppages. Non-observance of the Internal Work Regulations (serious in specific cases).
4.2.- Decrease in yield, or production volume or quality, verified by MTPE. Deliberate and repeated. Voluntary and conscious not imposed by circumstances.
4.3.- Theft: Completed or frustrated or improper use of goods or services, regardless of value. It is not necessary to cause harm to the employer, only the lack of loyalty and honesty of the worker must be taken into account.
4.4.- information: Use or delivery to third parties,.theft or improper use. Giving false information with the intention of causing harm. Unfair competition.
4.5.- Drunkenness and use of narcotic substances: Repeated attendance. Repetition does not apply when the nature of the function makes it a serious fault.
The worker's refusal to submit to an examination gives rise to his tacit recognition. Example: A surgeon doctor who appears drunk to operate. The Lawyer who goes to drunk oral report.
4.6.- Acts of violence: Extreme violence (. It is not considered a scratch on the arm to give a push) Injury, lack of verbal or written word to the detriment of the employer, its representatives or other workers. It does not include provocations, strong discussions. Intentional damage to buildings, facilities.
4.7. Abandonment of work: For a consecutive period. Repeated tardiness.
To take into account: The authorization to enter the work within the tolerance period established in the company is of an extraordinary nature, in special and eventual cases, and cannot be used every day and without limit, as this implies a modification of the admission time.
5.- Dismissal procedure for "just cause".
| Violation by | Prior release: Pre-notice letter | If you do not distort the facts: dismissal letter |
| Worker conduct | 06 days minimum. Can be expanded | Indicate cause and date of cessation |
| Worker capacity | 30 days, correct your deficiency |
5.1.- Some clarifications: In order not to be mistaken
The dismissal of a worker during his vacation, incapacitated by proven illness, is prohibited. The date of dismissal cannot be earlier than the date of delivery of the dismissal letter. There is no legal obligation of the employer to communicate the dismissal to the Ministry of Labor, however, it is advisable.
5.2.- Finally: The Principle of immediacy
Compliance with the deadlines for prior discharge, the time of the investigation process and the dismissal letter; They are part of the principle of immediacy.
The principle of immediacy does not refer to the fact that as soon as the fault is known, the corresponding sanction must be applied, as this would be “abuse of law; on the contrary, this principle consecrates the sanctioning power of the employer, which is established from the moment of the investigation until its conclusion, to finally apply the corresponding sanction.
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