Peru: A review of the main pronouncements of 2024

Full Chamber Resolution No. 002-2024-SUNAFIL/TFL

The unjustified transfer of workers affiliated with unions, without adequately informing the union, affects freedom of association. This transfer prevents the effective negotiation and participation of workers in union activities, violating their right to freedom of association. Therefore, this action is considered an overreach of the regular exercise of the employer's management power, and no additional aggravating factor is required to prove the harm caused to the workers affected by the measure.

Full Board Resolution No. 003-2024-SUNAFIL/TFL

Infringements whose unlawful effects can be repaired in their entirety (thus eliminating the illegality of the employer's actions, which is determined during the labor inspection) can be remedied. Therefore, violations will not be considered cured when, although the aforementioned condition could be fulfilled, the inspector considers that the employer has not been able to reverse the unlawful effects. Likewise, violations are considered to be irremediable when it is not possible to reverse the effects of the violation of the right or the breach of the obligation.

Full Chamber Resolution No. 004-2024-SUNAFIL/TFL

Aggressions against the worker's dignity also occur when the employer decides, arbitrarily and unjustifiably, not to entrust that worker with tasks, since the professional inactivity generated is contrary to the development of professional capacities and potential. This constitutes a violation of the right to work — which includes right to perform one’s duties effectively — and an act of hostility that affects the dignity of the person.

Full Chamber Resolution No. 014-2024-SUNAFIL/TFL

The service contract is altered when (i) a person provides permanent, regular or ordinary services related to the main activity of the employing entity; and (ii) an exclusivity agreement is introduced to the contract whose breach qualifies as a cause for termination of the contractual relationship. These aspects are, consequently, considered as labor characteristics.

Full Board Resolution No. 016-2024-SUNAFIL/TFL

Even though the relevant regulatory framework (Law No. 26644 and its regulations) does not expressly prohibit compensating maternity leave — for example, with overtime payment - it is contrary to the purpose of the regulation of maternity leave and to its constitutional bases to validate an agreement of compensation or substitution of maternity leave and breastfeeding leave.

Laboral Cassation No. 3241-2021-Arequipa

The Supreme Court affirms that the judge must presume the performance of overtime if the judge verifies that the employee was at the workplace before the start time and/or after the end time, unless there is evidence to the contrary. In this sense, it is the employer's responsibility to prove that the employee performed activities other than the actual work during the time that the employee remained in the workplace outside the working day.

Laboral Cassation No. 3497-2021-Lima

The Supreme Court established a ground for indemnification for arbitrary dismissal of workers in positions of trust. The Supreme Court determined that even workers in positions of trust are entitled to indemnification if the dismissal does not follow the proper procedure. In this case, the worker was dismissed for alleged serious misconduct, but the company did not comply with the legally established procedure, which constituted an arbitrary dismissal.

Labor Cassation No. 43446-2022-Lima

The Supreme Court states that, if a worker has had several periods of employment, the four-year term established in Law No. 27321 to claim their rights begins to count separately for each period of employment. In this sense, if there is evidence of more than one period worked at the same employer, that is, more than one labor relationship, not only the particularities of each period must be considered, but also the date of termination or end of the same, to determine when the term of action of the rights derived from the labor relationship of an employee begins.

Laboral Cassation No. 11057-2024-La Libertad

Parameters have been established for the exceptional proceeding of cassation appeals in labor proceedings. This judgment arises in the context of Law No. 31699, which optimizes the appeal in cassation in the New Labor Procedure Law. In cases of double conformity, a cassation appeal may be filed if there is an interest in cassation, which must be expressly invoked. This interest arises when the appealed judgment contradicts the doctrine of the Supreme Court or resolves issues in a manner contrary to other superior courts. It is necessary to identify and substantiate the similarity of the cases and attach the resolutions invoked to facilitate the administration of justice and ensure the celerity of the labor process.