Análisis de los criterios interpretativos del despido fraudulento en la jurisprudencia peruana y su aplicación en los juzgados laborales de la Corte Superior de Justicia de Arequipa

No hay miniatura disponible
Huanayque Condori, Julio Cesar
Título de la revista
Revista ISSN
Título del volumen
Universidad Nacional de San Agustín de Arequipa
Proyectos de investigación
Unidades organizativas
Número de la revista
The Constitutional Court, whose role has been instrumental in the insertion of constitutional law in labour Relations, has amended the model of protection against arbitrary dismissal, and specifying the normative content of the right to work and Adequate protection against arbitrary dismissal, has recognized the replacement as a mechanism of protection against arbitrary or harmful dismissal of fundamental rights, to which the legal category of fraudulent dismissal belongs. Since its creation, fraudulent dismissal has been the subject of various pronouncements, binding or not, which clarified procedural issues in its treatment (competition, procedural process and deadlines); However, it has not been reconditioned in a fundamental and initial aspect does fraudulent dismissal have any cause for its application as well as null dismissal? In what cases should the fraudulent dismissal be applied at the time of the challenge of a dismissal harmful to the fundamental rights of the worker? Do the interpretive criteria of the labour courts at the time of applying fraudulent dismissal recognise the jurisprudential scenario built by the Constitutional Court? What are their characteristics and effects of fraudulent dismissal, and what is differ from other dismissals of legal or jurisprudential origin? The present investigation analyses the argumentative continuity of the rulings of the Constitutional Court at the time of applying the fraudulent dismissal, to be compared with the resolved by the ordinary justice, from the labour courts to the court Supreme, evidencing contradictions in their criteria, because before the same assumptions of dismissals detrimental to fundamental rights, among them, the dismissal with Vice in the typical sanctions or with failure to observe due process, is restricted by the labor judge's application, while the constitutional judge has granted the guardianship. Therefore, it is essential to analyse the degree of affectation of the fundamental rights of the worker when he is denied the repairing guardianship, be it compensable or restitutoria, despite the denunciation of the injury of his fundamental rights when applied in a way Arbitrary the penalty of dismissal, to which the worker has qualified as fraudulent, but that at the discretion of the labor judge, does not consider it as such. Indeed, the indistinct application by the constitutional judge of its own legal categories of arbitrary dismissal has made unrecognizable the distinction between a dismissal without just cause, unreal cause or unproven cause, problematic aspect that is Intensified with the resolutions of the Supreme Court. However, the Constitutional Court has maintained its criteria for the protection of all harmful dismissal from fundamental rights, including by applying principles such as iura novit curia o substitution of complaint; While some Labourjudges, including the Supreme Court, have TESIS UNSA UNIVERSIDAD NACIONAL DE SAN AGUSTIN XI generated nulificantes resolutions or in the worst case scenario, Restitutoria guardianship has been denied, thereby generating greater legal uncertainty that harm the warring parties, but Above all, the workers. Therefore, it is not sufficient a restrictive interpretative criterion that limits the application of fraudulent dismissal when there are "non-existent or" false facts, with a vice of legality, with the manufacture of proof, or vice in the will of the worker ", because they are not Strict criteria. On the contrary, it is advisable that the Labour judge observe the jurisprudential scenario established by the Constitutional Court in the application of fraudulent dismissal, to adopt a broad criterion of application of fraudulent dismissal against different assumptions that are detrimental to their fundamental rights, in order to provide adequate protection against dismissal Fraudulent and protect the worker from arbitrary acts. Key words: Fraudulent dismissal, fundamental rights, right to work, adequate protection against arbitrary dismissal, procedural principles, repairing guardianship, jurisprudence.
A la Universidad Nacional de San Agustín por el financiamiento mediante contrato de subvención No. 54 – 2016 – UNSA “Tesis para optar el título profesional UNSA". A CIENCIACTIVA y CONCYTEC por el apoyo en la gestión técnica del proyecto.
Palabras clave
Tutela reparadora, Despido fraudulento, Derechos fundamentales, Derecho al trabajo, Principios procesales, Jurisprudencia