Court: Supreme Court's Office.
Date: 25/02/1969
Parties: De Luca, Joseph E. and another v. Banco Frances del Rio de la Plata.
Posted: Failures 273:87. 1-1969-565 JA.
ATTORNEY GENERAL'S OPINION .- Considering the players, former employees of Banco Frances del Rio de la Plata in June 1959 were laid off by that institution (see fs. 3 and 6), claimed in these proceedings the reinstatement in their jobs "under penalty of law determined by 12637 and its regulatory Decree 20268/1945 " and the recovery of back pay from the date of each layoffs.
In the course of litigation the petitioners also invoked in support of their claims, the law 16507 (see fs. 212).
In defense, the defendant objected various defenses, including the unconstitutionality of art. 6 Decree 20268/1946. Later, also argued that the law 16507 invoked by the actors, was incompatible with the guarantees of the fundamental law cited in his presentation of fs. 215.
The final sentence of fs. 236 declared unconstitutional the latter law, but rejected, however, the opposite tacks against 20268/1946 decree mentioned above. As a result, confirmed resolution of first instance obrante to fs. 231, which had sentenced the Banco Frances del Rio de la Plata "to reinstate the players in their positions on the fifth day, and pay them monthly salaries and annual additional accrued since the dates of their severance pay until their effective reinstatement. "
As in the special appeal of fs. 340, the defendant, among other grievances, remains a challenge to articulate against art. 6 Decree 20268/1946, estimated from the appeal.
On the merits of the case, ruling on 26/7/1967 in the case "Caputi Ferreyra, Jose M. v. English Banco Rio de la Plata s / collection pesos, "I spoke to the constitutionality of that provision, with foundations that, in the interest of brevity, I would give as reproduced on this occasion (1).
On merit, therefore, I think the verdict is for .- Edward H. Marquardt appealed.
NOTE:
(1) The opinion states:
The court's ruling on bank obrante fs. 85/88 of these cars, confirmed by the C. Nac. Trab. to fs 114. condemns the English Banco Rio de la Plata SA Limited to reinstate the plaintiff, Dr. Joseph M. Caputi Ferreyra, ranking it played when it came his dismissal, which took place on 07.31.1957 (see fs. 41 of the record added). It the ruling that the aforementioned institution is obligated to pay the salaries that would have been payable to the applicant in the period between the dismissal and reinstatement.
The sentence was based upon the provisions of Decree 20268/1946 that force to reinstate the employees whose severance does not obey the grounds provided for by art. 3 12637 law, or otherwise, to pay equally the remuneration that would have been payable.
Now the bank has deducted an extraordinary appeal against the ruling at issue on the grounds that those provisions of Decree 20268/1946 are inconsistent with law 12637, regulating, and in violation of the guarantees of the arts. 14, 16 and 17 CN.
I believe should be noted, for a better understanding of the case, the need to measure the true scope of the contested decision in the light of what is required by art. 2 12637 law, according to the text established by Decree 15355/1946 , and art. 6 Decree 20268/1946, in the sense that bank employees are entitled to be kept in his career until we were only able to obtain pension benefits.
Accordingly, if at the time of issuing the ruling that ordered the reinstatement of the employee it is in a situation retirement, it is clear that the mandate of no effect reinstatement.
To some extent this is what happens in the case, as the sentence itself, as also provided for the payment of salaries would have been for the actor to continue in their jobs during the time until the conclusion of the litigation, is to give one, which was not eligible to retire when there was unemployment, a sufficient basis in order to receive pension benefits under the insurance scheme for bank staff.
In fact, the obligation to pay the salaries just alluded to is, of necessity, the recognition of subsistence uninterrupted link that bound the parties. This granted, it would be applicable to the case of Dr. Caputi Ferreyra the provisions of art. 9 law 16588, which gave the bankers the ability to compensate for lack of years of service required to achieve normal retirement, the excess on the minimum age set by the law itself 16588 as a condition for the benefit .
By virtue of this rule, and granted the stay of the employment relationship, the actor would have a right to pension born with the rule of law above, it then had old enough to compensate for fifteen years of banking services needed to still meet in If I had no other computable (they are not appropriate to clarify, those referred to the report of fs. 65), in order to get pension benefits by the National Social Security Fund for Personal Banking and Insurance (see terms of age the plaintiff, the testimony of writing that looks at fs. 1 of the record added, and with regard to years of banking services provided, which is manifested fs. 3 row. of that cause).
This established, and since it was clear the bank will forgo the services of the actor can not be presumed the continuation of the employment relationship beyond the point to which the law guarantees the stability of the employee, ie, until the time that this might get retirement. Therefore, it is clear that, from the point of view of the decision under appeal, the relationship between the applicant and the bank should definitely be completed by when it was put into effect the law 16588.
So, then, that even if the appealed decision to stay, there would be for the bank's current obligation to reinstate Dr. Caputi Ferreyra, but only the remuneration payable for the period between the dismissal and the time he has to estimated dissolved within the employment relationship that, according to the above, extending from August 1957 to November 1964.
However, this does not deprive the defendant of interest to challenge the validity of art. 6 Decree 20268/46, which only has explicitly reinstated or, if not prove it, which paid the salaries of all relevant modes.
In fact, the charge that the sentence imposed by the bank derives from the implicit recognition, but forced the uninterrupted continuation of the employment relationship between the parties, which is a consequence of the criterion, founded as prescribed by the law in question, whereby they are zero layoffs in violation willing stability regime emerging 12637 law and this Decree 20268/1946 (see Monzon, "Dismissal of employees banking and insurance, DT 1965-229). Sitting
that, overall, the appellant's interest to put into question the aforementioned regulations, must examine the grievances lodged against the sentence fs. 114.
First, it should be noted that, as appellant himself has to admit it, not because the tax system introduced in establishing a privileged position in favor of the employees are not reinstated against those who remain to provide services, subject to the risks matters continued occupation, then under the VE case, this blemish can only be invoked by those whose injury would take place discrimination question (Verdict rendered in re "Flores, The Real Estate Co. v. Elvio. Argentina de Seguros Generales"-F. 24 L. XV -, dated 27/12/1965).
Among other grievances articulated by the appellant, one refers to the incompatibility between the law 12637 and the requirements of its regulatory Decree 20268/1946 applied to the sub judice, the issue as stated by examining a flaw Similarly, in the precedent cited in the preceding paragraph, also supports the special appeal, since it refers to the interpretation of federal rules governing not the case.
But as any to challenge deduced guarantees support the arts. 14 and 17 CN ., I think that it is founded, and for that reason I would advise the review of the criteria laid on the point in the sentence above remembered.
I think, first, that the system stability of the banking personnel, as required by law 12637 and its regulatory Decree 20268/1946 , denies the right to attend private companies to run their business with a reasonable margin of autonomy, which certainly ensures the art. 14 CN. when enshrines freedom of trade and perform any lawful industry.
As is known, art. 3 law 12637 as amended by Legislative Decree 15355/1946 and art. 8 Decree 20268/1946 exhaustive list of justified reasons for the dismissal of bank employees, which are: a) judicial conviction for crimes against the bank or a third party, b) physical or mental disability, c) chronic infectious disease that poses a threat for staff; d) prolonged or repeated absences; e) severely and repeatedly disobeying the orders and instructions given to employees in the exercise of the respective banking functions, or disorderly conduct; f) salary recurrent seizures.
Outside of these circumstances, in accordance with prescribed by art. 6 para. 1 Decree 20268/1946, banks have no right to layoffs of employees, under penalty, as I have said, to pay, should not access your return, wages he would have received perceive to be able to obtain pension benefits.
The only exception provided by the decree mentioned in the case of a final cessation of the activities of the body, since in that case the employment relationship simply dissolves, recognizing employees only entitled to compensation equal to one month's salary for each year of service (art. 6 para . 4 º Decree 20268/1946). Is disputed, however, if the cessation of activities in a particular place, caused by the closure of a branch, can be compared to the case covered by that standard (see "Treatise on Labor Law," directed by Deveali, Mario L., t. III, 1965, p. 363, n. 4 and footnote 312).
Therefore, banks are prevented from losing the services of dependents even if they have repeatedly committed serious offenses do not deserve the confidence of the institution, which is particularly serious when one considers, for example, in the situation is created to place an acquittal for doubt, or when employees, without making serious mistakes, end up showing total inefficiency (in the latter regard see the case referred to "Labour Law Treaty" cit., p. 405) . Also be retained employees for which there is no longer useful task to perform, which is precisely what the defendant alleged in this case, or whose posts you agreed to delete by pressing reasons of economy. Nor can it be solved by this way the relationship problems that may preclude the useful collaboration of the staff of a company and sometimes find no remedy but in the separation of a dependent. It is also possible to note that the right to own stability, resulting in restriction to the bank, was born after a shorter period of testing, which now, after the repeal of Decree 5547/1959 by Decree 1368 / 1963, is only six months.
Since then, we see that there is mismatch between the regimes of stability of this class and the basic requirements of a rule in which economic management is private.
In fact, this consideration explains the art. 14 new fundamental law that establishes the stability of public employees is limited to ensure that workers in general, protection against arbitrary dismissal.
This arises from the conventional exposure reported on the point, distinguishing between the sphere of public law in which discretion is the exception, and the relations of private law in which one is the rule, citing also the opinions of Barassi, who, while not accepting the argument that stability is exclusive of public services, recognizes that it is rare in the field of private law because the limitation is important for the autonomy of employers.
reporting member also expressed that "it is very difficult to force an employer to reinstate in local business, for reinstatement to employment, the employee whose services you want to stop using," and that "no issue in the case of a purely legal difficulty can be overcome by restraining or compulsive convictions are so common in Anglo-American law, and that isolated cases have been enforced in our country, but a logical impossibility and human case of the merchant and banker, highly trusted employee, et cetera. "(Diary of Sessions of the National Constituent Assembly, t. II, 1957, ps. 1226 and 1227).
The difficulty, as has been seen, but, however, has not been determined whether it prejudice in all cases (apart from the union representatives, which is not a question), to be extended to the private field a regime of stability as is proper for public employees, or whether, instead, there would be scenarios in which the legislature, certainly an exception, would be empowered to create such systems in the area mentioned in second term. Be that as it may, it is clear from the words of the reporting member, in respect of personal banking, among others, it was inappropriate for the legislature to exercise the power referred.
For my part, I think the issue should not be formulated in such terms, because it established the different nature of the private sector, whose sign is autonomy, with the subsequent recognition of a wide area in which individuals are entitled to exercise discretion and prudence, and governance, in which the law is the fundamental principle, a rigid stability system as exists in the latter field is not applicable to the first. This does not, of course, that, pursuing legitimate social objectives can be established regimes by creating more flexible compensation system to better protect workers, taking into account their length of employment, the conservation of this until there is reasonable cause to justify the separation.
In such cases, the main thing is that the systems in question do not come to abolish virtually discretionary power is essential to recognize private companies with regard to the integration of its staff. This obviously not the case if, as in the hypotheses examined here, cases admitted to justify the dismissal are so few that even prevent the separation of a single serious offense, and no account of the delicate situations that occur when it breaks the trust relationship between employer and employee.
These considerations seem sufficient to conclude that the Law 12637 and Decree 20268/1946, as limiting the causes of unemployment to exclude situations like those described above, among which has, of course, the continued failure of tasks assigned to the employee, who is, as I said, what the defendant claimed here, do not respect the minimum requirements of the guarantee of art. 14 CN. in order to recognize a sufficient level of autonomy to power own management of private enterprises. I have advance
not only from this point of view I find invalid the disputed rules, but also are considered in light of the security of the property. I do not agree, in fact, the thesis that supports the decisions in that case "Flores, The Real Estate Co. v. Elvio. Argentina de Seguros Generales," according to which the payment of salaries without any consideration by the employee harms the security of property and the employer ignores an act of free will to use the dependent activity offers.
This argument is apparently satisfactory, because often employers must pay compensation for time not worked, whether it obeys the obligations, and welfare, as is the case of annual leave, sick leave, maternity, etc., or because the work is been interrupted following the arbitrary exercise of the powers of direction of the employer, which happens, eg, in the cases of unjustified suspension and lock out offensive.
But in all these cases it is assumed that the worker effectively integrates the body of the company, and is the real link you create for it the duty of solidarity which is the obligation to pay wages during periods which, momentarily, not serviced, But in the end, though at certain moments in the completion of the work is suspended, the clerk is not disconnected from the company is always regulated activity in consideration of the requirements, including social and human the organization of it, and alternatives of their operation. Therefore, from the point of view, we can say that leisure itself the interruption of work is somehow a real service, as the clerk is not for free disposal of their activity, but compliance to the management of it by the employer.
Very different is the situation of persons, not having been reinstated, does not belong the company, since which can not be said to interrupt the work normally done, but actually has no such work, while enjoying substantial freedom to get out of your time, no other limit than the choice of it deems the most convenient for themselves if they are again called by the entity formerly played.
Ultimately, it is the actual participation in the economic body is organized enterprise that decides on the obligation to pay the fees, even in certain periods of interruption of work, but, just, just complete fiction could be said who is a member of that body who has not been reinstated a él.
Estimo, en consecuencia que el pago de las remuneraciones aludidas, en cuanto tales, no encuentra justificación alguna.
Por otra parte, entiendo que tampoco cabría considerar que las sumas correspondientes sean el resarcimiento de un acto ilícito constituido por el despido y la negativa a la reincorporación.
En este orden de ideas, es preciso señalar que si se tratara de una verdadera compensación del daño, la obligación establecida por la ley sólo reposaría sobre una presunción iuris tantum que podría ser desvirtuada por el empleador demostrando en cada caso la posibilidad de que su antiguo empleado obtuviera ingresos en nuevas actividades.
Tal presunción sería por absurd Moreover, by assuming the opposite of what usually happens, it is not uncommon for people capable of useful work are unable to use their time in some productive work.
worth highlighting in this way, the different nature of severance created by Law 11729, as it obliges the employer to give the clerk a deferred compensation earnings in order to put as much as possible, safe from economic pressures during the time it take to get a new occupation.
If, therefore, I sought some reason the obligation laid down the rule that objects to the appellant, it would not be but the exercise of repressive power of the state. But then, it would be necessary to prove the validity of using that power for the purpose of forcing compliance with the obligations at issue here.
alleged, by definition, a solution so, this would, however, accept a theory that conceptualizes not admissible.
In fact, one thing is mere civil penalties, always linked to compensation of damage that, therefore, must be received by those entitled to compensation, and other, however, if it is real and serious penalties are imposed on the exclusive benefit of private parties as well come with the restoration of one type of institution's own forms of social organization before the modern state.
The payment of the amounts in question appears, therefore, only as a tax benefit of certain individuals, ie an enrichment of some people at the expense of others with no valid reason for doing so.
Well, it has been recognized as certainly no State is allowed to proceed in this way even if pretext for the exercise of taxing powers, because not for that, or for any other reason, you can take the property of some citizens to to give to others without any title to receive (see Cooley, "Constitutional Limitations", vol. II, 1927, Boston, p. 1034). If so, the legislature can not make such acts available arbitrary property of individuals by way of exercising the powers emanating from the art. 14 new CN.
Moreover, when creating charges which only one group of people to seek a benefit given to another, it is necessary in regard to the principle mentioned that mediate linkages between sectors to justify the services required (doct. Bug 250:160, consid. 3). Even more so this requirement applies if the benefit derived is given, as is the case here, an objection which may result from the ethical point of view, he who receives the benefit obtained, no activity on his part, a sure win with which can normal discharge his obligation to work, or at least created an additional source of income.
In this regard it should be borne in mind that although this is not the situation that exists in the sub judice, by this means it is possible to establish, in certain instances, the obligation to provide free of charge, a kind of income Lifetime important for young people who likely have very long before him years of fruitful activity.
way it is also possible to observe that the period for which should benefit referred decreases as age increases, so most favored are those with lower degree of stability.
The scheme appears, therefore, from any angle you examine it, as unreasonable, so that it can not be put under the protection of the doctrine of the Supreme Court according to which the benefits provided by regulatory standards of the employment relationship as a requirement of justice in the subordinate labor organization, can not be challenged constitutional grounds if they were not unreasonable or capricious.
In summary, therefore, conclude, first, that the aforementioned stability system is not compatible with freedom of commerce and industry guaranteed by art. 14 CN., While prevents severely coercive means, exercise the minimum discretion must recognize private companies in order to address their activities.
Secondly, I believe that the sanctions regime established by Decree 20268/1946 is harmful to the security of property, even assuming, by way of hypothesis, that the standards issues under the requisite inherent requirements autonomy guaranteed to the private sector by the art. 14 CN. Sitting
above premises, can not keep the sole obligation actually be derived from the judgment-that is, as I have said, the benefits are paid that would have received if working actor during the time between the dismissal and the time of the sentence be final, should be considered as one born to the right to retire, and that the imposition of such charges stem from an argument based only on the prescribed by any rules invalid.
therefore supported the inapplicability of the system of privilege established by law 12637 and Decree 20268/1946 , I understand that any law that assists the applicant is not but to claim the compensation provided by law 11729 (see Unsain, "Compensation for dismissed employees in the Banking Act, DT 1941-3).
I think, therefore, corresponding to revoke the ruling has been appealed as being subject to appeal .- Edward H. Marquardt.
Buenos Aires, February 25, 1969 .- Considering: 1. That the decision of the court sentenced the defendant bank bank to reinstate the players in positions they played at the time of his dismissal and pay them the salaries they would have accrued from the time of it until his actual reinstatement. Appealed that ruling was confirmed by C. Nat Trab., And it is against this last statement that was brought to fs. 340/352 extraordinary remedy, granted to FS. 353.
2. The plaintiffs, Dominic A. Rinaldi and Joseph E. de Luca, were laid off from their jobs Bank French River Plate, 8 and 22/6/1959, respectively, because of not having gone to services adhering to the strike declared by the guild bank. Following that decision, because the bank refused to reinstate them, they deduced the present application, based on the law 12637 and its regulatory Decree 20268/1946 .
3. That the decision of the court a quo, while admitting the unconstitutionality of the law as 16507 could alter the procedure and decide on cases pending at the date of its enactment, dismissed the appeal against the decree made 20268/1946 and, on its merit, has favored to the demands of the actors, who considered arbitrarily dismissed.
4. That the defendant bank subject to this Court review of the relevance of the obligation imposed by the AP. 3 of art. 6 20268/1946 decree, because in his view the provision, regulatory 12637 law, violates the guarantee of art. 17 CN., Reason for which the extraordinary remedy is appropriate.
5. That the grievance should be upheld because, in effect, is obviously outrageous, and damaging lack of reasonableness of the security claimed that the unfair dismissal of an employee belonging to any of the institutions subject to the provisions of Law 12637 may bring to an employer who does not agree to reinstate the obligation to pay, for life, all salaries have been able to correspond to the time it reaches the right to retirement.
6. That the intrinsic injustice of such a system, as enshrined the right to be paid, and even to reach the retirement benefit, no work, pecuniary burdens, exceeding what is the legitimate right of compensation for unfair dismissal, affects undoubtedly, the basis on which rests the freedom of contract, because it imposes the obligation to pay wages that do not respond to any consideration of work, so, unless the avenge-employer against his will, to continue to maintain in office employees do not enjoy the confidence that should prevail in all relationships of dependency.
7. Which thus affected the security of the property because the Court does not share, in its present composition, the argument in the case of failures 263:545, according to which "the payment of royalties, without consideration of the agent until reaching the right to retirement, it is not necessary conduct but the result of voluntary activity regardless of one by the company, discretionary attitude, moreover, the tax deprives enough to challenge those economic consequences for services not rendered by own desire. "In this regard, this court finds that once the employment relationship is broken because of an unfair dismissal should be granted the right to claim reasonable compensation proportionate to the damage suffered. But that can not be accepted as legitimate load continue to pay remuneration as such without any justification.
8. That, in these conditions, as argued by the attorney general, "the payment of the amounts in question appears, therefore, only as a charge for the benefit of certain individuals, ie an enrichment of some people at the expense of others without valid reason to justify it. "To which I might add that the lack of justice of such a provision is susceptible to objections even from the ethical point of view, as also claimed by the attorney general, as the contested provision, to consecrate the privilege of paid leave a job without compensation, is to set up a kind of income Lifetime free nature, based on the sole discretion of the legislature, to ensure that beneficiaries gain some no activity on their part are exempt from the normal obligation to work.
9. That the arbitrariness of the system becomes even more apparent when one considers that the wording of the provision in question leads inevitably to accept the right to enjoy retirement by virtue of work not performed, con desconocimiento del elemental principio de que tal beneficio constituye el reconocimiento al derecho de descansar después de largos años de servicios. Y con el agravante de que tanto el derecho de cobrar estipendios a cargo del ex empleador como el de jubilarse en condiciones tan anómalas vendría a adquirirse por el solo hecho de haber trabajado seis meses en forma efectiva (decreto 1368/1963 ).
10. Que lo expuesto es suficiente para demostrar que no se está en presencia de una verdadera indemnización por despido arbitrario, sino de una especie de sanción represiva impuesta a la entidad que se niega a reincorporar al empleado; sanción que a su vez asume, desde el punto de vista de éste, el carácter a constraint, the more substantial the shorter was the period of work, since ultimately the art. 6 Decree 20268/1946 leads paradoxically to further benefit those with less seniority and less, however, who have more years of work.
Therefore, in accordance with the attorney general ruled in the case mentioned at fs. 378, and without prejudice to the right of actors to claim the compensation to which entitled any, is revoked as the original ruling could be the subject of an extraordinary appeal .- Eduardo A. Roberto E. Ortiz Basualdo .- Marco A. Chute .- Risoli .- Luis C. Joseph F. Cabral .- Bidau.
In the course of litigation the petitioners also invoked in support of their claims, the law 16507 (see fs. 212).
In defense, the defendant objected various defenses, including the unconstitutionality of art. 6 Decree 20268/1946. Later, also argued that the law 16507 invoked by the actors, was incompatible with the guarantees of the fundamental law cited in his presentation of fs. 215.
The final sentence of fs. 236 declared unconstitutional the latter law, but rejected, however, the opposite tacks against 20268/1946 decree mentioned above. As a result, confirmed resolution of first instance obrante to fs. 231, which had sentenced the Banco Frances del Rio de la Plata "to reinstate the players in their positions on the fifth day, and pay them monthly salaries and annual additional accrued since the dates of their severance pay until their effective reinstatement. "
As in the special appeal of fs. 340, the defendant, among other grievances, remains a challenge to articulate against art. 6 Decree 20268/1946, estimated from the appeal.
On the merits of the case, ruling on 26/7/1967 in the case "Caputi Ferreyra, Jose M. v. English Banco Rio de la Plata s / collection pesos, "I spoke to the constitutionality of that provision, with foundations that, in the interest of brevity, I would give as reproduced on this occasion (1).
On merit, therefore, I think the verdict is for .- Edward H. Marquardt appealed.
NOTE:
(1) The opinion states:
The court's ruling on bank obrante fs. 85/88 of these cars, confirmed by the C. Nac. Trab. to fs 114. condemns the English Banco Rio de la Plata SA Limited to reinstate the plaintiff, Dr. Joseph M. Caputi Ferreyra, ranking it played when it came his dismissal, which took place on 07.31.1957 (see fs. 41 of the record added). It the ruling that the aforementioned institution is obligated to pay the salaries that would have been payable to the applicant in the period between the dismissal and reinstatement.
The sentence was based upon the provisions of Decree 20268/1946 that force to reinstate the employees whose severance does not obey the grounds provided for by art. 3 12637 law, or otherwise, to pay equally the remuneration that would have been payable.
Now the bank has deducted an extraordinary appeal against the ruling at issue on the grounds that those provisions of Decree 20268/1946 are inconsistent with law 12637, regulating, and in violation of the guarantees of the arts. 14, 16 and 17 CN.
I believe should be noted, for a better understanding of the case, the need to measure the true scope of the contested decision in the light of what is required by art. 2 12637 law, according to the text established by Decree 15355/1946 , and art. 6 Decree 20268/1946, in the sense that bank employees are entitled to be kept in his career until we were only able to obtain pension benefits.
Accordingly, if at the time of issuing the ruling that ordered the reinstatement of the employee it is in a situation retirement, it is clear that the mandate of no effect reinstatement.
To some extent this is what happens in the case, as the sentence itself, as also provided for the payment of salaries would have been for the actor to continue in their jobs during the time until the conclusion of the litigation, is to give one, which was not eligible to retire when there was unemployment, a sufficient basis in order to receive pension benefits under the insurance scheme for bank staff.
In fact, the obligation to pay the salaries just alluded to is, of necessity, the recognition of subsistence uninterrupted link that bound the parties. This granted, it would be applicable to the case of Dr. Caputi Ferreyra the provisions of art. 9 law 16588, which gave the bankers the ability to compensate for lack of years of service required to achieve normal retirement, the excess on the minimum age set by the law itself 16588 as a condition for the benefit .
By virtue of this rule, and granted the stay of the employment relationship, the actor would have a right to pension born with the rule of law above, it then had old enough to compensate for fifteen years of banking services needed to still meet in If I had no other computable (they are not appropriate to clarify, those referred to the report of fs. 65), in order to get pension benefits by the National Social Security Fund for Personal Banking and Insurance (see terms of age the plaintiff, the testimony of writing that looks at fs. 1 of the record added, and with regard to years of banking services provided, which is manifested fs. 3 row. of that cause).
This established, and since it was clear the bank will forgo the services of the actor can not be presumed the continuation of the employment relationship beyond the point to which the law guarantees the stability of the employee, ie, until the time that this might get retirement. Therefore, it is clear that, from the point of view of the decision under appeal, the relationship between the applicant and the bank should definitely be completed by when it was put into effect the law 16588.
So, then, that even if the appealed decision to stay, there would be for the bank's current obligation to reinstate Dr. Caputi Ferreyra, but only the remuneration payable for the period between the dismissal and the time he has to estimated dissolved within the employment relationship that, according to the above, extending from August 1957 to November 1964.
However, this does not deprive the defendant of interest to challenge the validity of art. 6 Decree 20268/46, which only has explicitly reinstated or, if not prove it, which paid the salaries of all relevant modes.
In fact, the charge that the sentence imposed by the bank derives from the implicit recognition, but forced the uninterrupted continuation of the employment relationship between the parties, which is a consequence of the criterion, founded as prescribed by the law in question, whereby they are zero layoffs in violation willing stability regime emerging 12637 law and this Decree 20268/1946 (see Monzon, "Dismissal of employees banking and insurance, DT 1965-229). Sitting
that, overall, the appellant's interest to put into question the aforementioned regulations, must examine the grievances lodged against the sentence fs. 114.
First, it should be noted that, as appellant himself has to admit it, not because the tax system introduced in establishing a privileged position in favor of the employees are not reinstated against those who remain to provide services, subject to the risks matters continued occupation, then under the VE case, this blemish can only be invoked by those whose injury would take place discrimination question (Verdict rendered in re "Flores, The Real Estate Co. v. Elvio. Argentina de Seguros Generales"-F. 24 L. XV -, dated 27/12/1965).
Among other grievances articulated by the appellant, one refers to the incompatibility between the law 12637 and the requirements of its regulatory Decree 20268/1946 applied to the sub judice, the issue as stated by examining a flaw Similarly, in the precedent cited in the preceding paragraph, also supports the special appeal, since it refers to the interpretation of federal rules governing not the case.
But as any to challenge deduced guarantees support the arts. 14 and 17 CN ., I think that it is founded, and for that reason I would advise the review of the criteria laid on the point in the sentence above remembered.
I think, first, that the system stability of the banking personnel, as required by law 12637 and its regulatory Decree 20268/1946 , denies the right to attend private companies to run their business with a reasonable margin of autonomy, which certainly ensures the art. 14 CN. when enshrines freedom of trade and perform any lawful industry.
As is known, art. 3 law 12637 as amended by Legislative Decree 15355/1946 and art. 8 Decree 20268/1946 exhaustive list of justified reasons for the dismissal of bank employees, which are: a) judicial conviction for crimes against the bank or a third party, b) physical or mental disability, c) chronic infectious disease that poses a threat for staff; d) prolonged or repeated absences; e) severely and repeatedly disobeying the orders and instructions given to employees in the exercise of the respective banking functions, or disorderly conduct; f) salary recurrent seizures.
Outside of these circumstances, in accordance with prescribed by art. 6 para. 1 Decree 20268/1946, banks have no right to layoffs of employees, under penalty, as I have said, to pay, should not access your return, wages he would have received perceive to be able to obtain pension benefits.
The only exception provided by the decree mentioned in the case of a final cessation of the activities of the body, since in that case the employment relationship simply dissolves, recognizing employees only entitled to compensation equal to one month's salary for each year of service (art. 6 para . 4 º Decree 20268/1946). Is disputed, however, if the cessation of activities in a particular place, caused by the closure of a branch, can be compared to the case covered by that standard (see "Treatise on Labor Law," directed by Deveali, Mario L., t. III, 1965, p. 363, n. 4 and footnote 312).
Therefore, banks are prevented from losing the services of dependents even if they have repeatedly committed serious offenses do not deserve the confidence of the institution, which is particularly serious when one considers, for example, in the situation is created to place an acquittal for doubt, or when employees, without making serious mistakes, end up showing total inefficiency (in the latter regard see the case referred to "Labour Law Treaty" cit., p. 405) . Also be retained employees for which there is no longer useful task to perform, which is precisely what the defendant alleged in this case, or whose posts you agreed to delete by pressing reasons of economy. Nor can it be solved by this way the relationship problems that may preclude the useful collaboration of the staff of a company and sometimes find no remedy but in the separation of a dependent. It is also possible to note that the right to own stability, resulting in restriction to the bank, was born after a shorter period of testing, which now, after the repeal of Decree 5547/1959 by Decree 1368 / 1963, is only six months.
Since then, we see that there is mismatch between the regimes of stability of this class and the basic requirements of a rule in which economic management is private.
In fact, this consideration explains the art. 14 new fundamental law that establishes the stability of public employees is limited to ensure that workers in general, protection against arbitrary dismissal.
This arises from the conventional exposure reported on the point, distinguishing between the sphere of public law in which discretion is the exception, and the relations of private law in which one is the rule, citing also the opinions of Barassi, who, while not accepting the argument that stability is exclusive of public services, recognizes that it is rare in the field of private law because the limitation is important for the autonomy of employers.
reporting member also expressed that "it is very difficult to force an employer to reinstate in local business, for reinstatement to employment, the employee whose services you want to stop using," and that "no issue in the case of a purely legal difficulty can be overcome by restraining or compulsive convictions are so common in Anglo-American law, and that isolated cases have been enforced in our country, but a logical impossibility and human case of the merchant and banker, highly trusted employee, et cetera. "(Diary of Sessions of the National Constituent Assembly, t. II, 1957, ps. 1226 and 1227).
The difficulty, as has been seen, but, however, has not been determined whether it prejudice in all cases (apart from the union representatives, which is not a question), to be extended to the private field a regime of stability as is proper for public employees, or whether, instead, there would be scenarios in which the legislature, certainly an exception, would be empowered to create such systems in the area mentioned in second term. Be that as it may, it is clear from the words of the reporting member, in respect of personal banking, among others, it was inappropriate for the legislature to exercise the power referred.
For my part, I think the issue should not be formulated in such terms, because it established the different nature of the private sector, whose sign is autonomy, with the subsequent recognition of a wide area in which individuals are entitled to exercise discretion and prudence, and governance, in which the law is the fundamental principle, a rigid stability system as exists in the latter field is not applicable to the first. This does not, of course, that, pursuing legitimate social objectives can be established regimes by creating more flexible compensation system to better protect workers, taking into account their length of employment, the conservation of this until there is reasonable cause to justify the separation.
In such cases, the main thing is that the systems in question do not come to abolish virtually discretionary power is essential to recognize private companies with regard to the integration of its staff. This obviously not the case if, as in the hypotheses examined here, cases admitted to justify the dismissal are so few that even prevent the separation of a single serious offense, and no account of the delicate situations that occur when it breaks the trust relationship between employer and employee.
These considerations seem sufficient to conclude that the Law 12637 and Decree 20268/1946, as limiting the causes of unemployment to exclude situations like those described above, among which has, of course, the continued failure of tasks assigned to the employee, who is, as I said, what the defendant claimed here, do not respect the minimum requirements of the guarantee of art. 14 CN. in order to recognize a sufficient level of autonomy to power own management of private enterprises. I have advance
not only from this point of view I find invalid the disputed rules, but also are considered in light of the security of the property. I do not agree, in fact, the thesis that supports the decisions in that case "Flores, The Real Estate Co. v. Elvio. Argentina de Seguros Generales," according to which the payment of salaries without any consideration by the employee harms the security of property and the employer ignores an act of free will to use the dependent activity offers.
This argument is apparently satisfactory, because often employers must pay compensation for time not worked, whether it obeys the obligations, and welfare, as is the case of annual leave, sick leave, maternity, etc., or because the work is been interrupted following the arbitrary exercise of the powers of direction of the employer, which happens, eg, in the cases of unjustified suspension and lock out offensive.
But in all these cases it is assumed that the worker effectively integrates the body of the company, and is the real link you create for it the duty of solidarity which is the obligation to pay wages during periods which, momentarily, not serviced, But in the end, though at certain moments in the completion of the work is suspended, the clerk is not disconnected from the company is always regulated activity in consideration of the requirements, including social and human the organization of it, and alternatives of their operation. Therefore, from the point of view, we can say that leisure itself the interruption of work is somehow a real service, as the clerk is not for free disposal of their activity, but compliance to the management of it by the employer.
Very different is the situation of persons, not having been reinstated, does not belong the company, since which can not be said to interrupt the work normally done, but actually has no such work, while enjoying substantial freedom to get out of your time, no other limit than the choice of it deems the most convenient for themselves if they are again called by the entity formerly played.
Ultimately, it is the actual participation in the economic body is organized enterprise that decides on the obligation to pay the fees, even in certain periods of interruption of work, but, just, just complete fiction could be said who is a member of that body who has not been reinstated a él.
Estimo, en consecuencia que el pago de las remuneraciones aludidas, en cuanto tales, no encuentra justificación alguna.
Por otra parte, entiendo que tampoco cabría considerar que las sumas correspondientes sean el resarcimiento de un acto ilícito constituido por el despido y la negativa a la reincorporación.
En este orden de ideas, es preciso señalar que si se tratara de una verdadera compensación del daño, la obligación establecida por la ley sólo reposaría sobre una presunción iuris tantum que podría ser desvirtuada por el empleador demostrando en cada caso la posibilidad de que su antiguo empleado obtuviera ingresos en nuevas actividades.
Tal presunción sería por absurd Moreover, by assuming the opposite of what usually happens, it is not uncommon for people capable of useful work are unable to use their time in some productive work.
worth highlighting in this way, the different nature of severance created by Law 11729, as it obliges the employer to give the clerk a deferred compensation earnings in order to put as much as possible, safe from economic pressures during the time it take to get a new occupation.
If, therefore, I sought some reason the obligation laid down the rule that objects to the appellant, it would not be but the exercise of repressive power of the state. But then, it would be necessary to prove the validity of using that power for the purpose of forcing compliance with the obligations at issue here.
alleged, by definition, a solution so, this would, however, accept a theory that conceptualizes not admissible.
In fact, one thing is mere civil penalties, always linked to compensation of damage that, therefore, must be received by those entitled to compensation, and other, however, if it is real and serious penalties are imposed on the exclusive benefit of private parties as well come with the restoration of one type of institution's own forms of social organization before the modern state.
The payment of the amounts in question appears, therefore, only as a tax benefit of certain individuals, ie an enrichment of some people at the expense of others with no valid reason for doing so.
Well, it has been recognized as certainly no State is allowed to proceed in this way even if pretext for the exercise of taxing powers, because not for that, or for any other reason, you can take the property of some citizens to to give to others without any title to receive (see Cooley, "Constitutional Limitations", vol. II, 1927, Boston, p. 1034). If so, the legislature can not make such acts available arbitrary property of individuals by way of exercising the powers emanating from the art. 14 new CN.
Moreover, when creating charges which only one group of people to seek a benefit given to another, it is necessary in regard to the principle mentioned that mediate linkages between sectors to justify the services required (doct. Bug 250:160, consid. 3). Even more so this requirement applies if the benefit derived is given, as is the case here, an objection which may result from the ethical point of view, he who receives the benefit obtained, no activity on his part, a sure win with which can normal discharge his obligation to work, or at least created an additional source of income.
In this regard it should be borne in mind that although this is not the situation that exists in the sub judice, by this means it is possible to establish, in certain instances, the obligation to provide free of charge, a kind of income Lifetime important for young people who likely have very long before him years of fruitful activity.
way it is also possible to observe that the period for which should benefit referred decreases as age increases, so most favored are those with lower degree of stability.
The scheme appears, therefore, from any angle you examine it, as unreasonable, so that it can not be put under the protection of the doctrine of the Supreme Court according to which the benefits provided by regulatory standards of the employment relationship as a requirement of justice in the subordinate labor organization, can not be challenged constitutional grounds if they were not unreasonable or capricious.
In summary, therefore, conclude, first, that the aforementioned stability system is not compatible with freedom of commerce and industry guaranteed by art. 14 CN., While prevents severely coercive means, exercise the minimum discretion must recognize private companies in order to address their activities.
Secondly, I believe that the sanctions regime established by Decree 20268/1946 is harmful to the security of property, even assuming, by way of hypothesis, that the standards issues under the requisite inherent requirements autonomy guaranteed to the private sector by the art. 14 CN. Sitting
above premises, can not keep the sole obligation actually be derived from the judgment-that is, as I have said, the benefits are paid that would have received if working actor during the time between the dismissal and the time of the sentence be final, should be considered as one born to the right to retire, and that the imposition of such charges stem from an argument based only on the prescribed by any rules invalid.
therefore supported the inapplicability of the system of privilege established by law 12637 and Decree 20268/1946 , I understand that any law that assists the applicant is not but to claim the compensation provided by law 11729 (see Unsain, "Compensation for dismissed employees in the Banking Act, DT 1941-3).
I think, therefore, corresponding to revoke the ruling has been appealed as being subject to appeal .- Edward H. Marquardt.
Buenos Aires, February 25, 1969 .- Considering: 1. That the decision of the court sentenced the defendant bank bank to reinstate the players in positions they played at the time of his dismissal and pay them the salaries they would have accrued from the time of it until his actual reinstatement. Appealed that ruling was confirmed by C. Nat Trab., And it is against this last statement that was brought to fs. 340/352 extraordinary remedy, granted to FS. 353.
2. The plaintiffs, Dominic A. Rinaldi and Joseph E. de Luca, were laid off from their jobs Bank French River Plate, 8 and 22/6/1959, respectively, because of not having gone to services adhering to the strike declared by the guild bank. Following that decision, because the bank refused to reinstate them, they deduced the present application, based on the law 12637 and its regulatory Decree 20268/1946 .
3. That the decision of the court a quo, while admitting the unconstitutionality of the law as 16507 could alter the procedure and decide on cases pending at the date of its enactment, dismissed the appeal against the decree made 20268/1946 and, on its merit, has favored to the demands of the actors, who considered arbitrarily dismissed.
4. That the defendant bank subject to this Court review of the relevance of the obligation imposed by the AP. 3 of art. 6 20268/1946 decree, because in his view the provision, regulatory 12637 law, violates the guarantee of art. 17 CN., Reason for which the extraordinary remedy is appropriate.
5. That the grievance should be upheld because, in effect, is obviously outrageous, and damaging lack of reasonableness of the security claimed that the unfair dismissal of an employee belonging to any of the institutions subject to the provisions of Law 12637 may bring to an employer who does not agree to reinstate the obligation to pay, for life, all salaries have been able to correspond to the time it reaches the right to retirement.
6. That the intrinsic injustice of such a system, as enshrined the right to be paid, and even to reach the retirement benefit, no work, pecuniary burdens, exceeding what is the legitimate right of compensation for unfair dismissal, affects undoubtedly, the basis on which rests the freedom of contract, because it imposes the obligation to pay wages that do not respond to any consideration of work, so, unless the avenge-employer against his will, to continue to maintain in office employees do not enjoy the confidence that should prevail in all relationships of dependency.
7. Which thus affected the security of the property because the Court does not share, in its present composition, the argument in the case of failures 263:545, according to which "the payment of royalties, without consideration of the agent until reaching the right to retirement, it is not necessary conduct but the result of voluntary activity regardless of one by the company, discretionary attitude, moreover, the tax deprives enough to challenge those economic consequences for services not rendered by own desire. "In this regard, this court finds that once the employment relationship is broken because of an unfair dismissal should be granted the right to claim reasonable compensation proportionate to the damage suffered. But that can not be accepted as legitimate load continue to pay remuneration as such without any justification.
8. That, in these conditions, as argued by the attorney general, "the payment of the amounts in question appears, therefore, only as a charge for the benefit of certain individuals, ie an enrichment of some people at the expense of others without valid reason to justify it. "To which I might add that the lack of justice of such a provision is susceptible to objections even from the ethical point of view, as also claimed by the attorney general, as the contested provision, to consecrate the privilege of paid leave a job without compensation, is to set up a kind of income Lifetime free nature, based on the sole discretion of the legislature, to ensure that beneficiaries gain some no activity on their part are exempt from the normal obligation to work.
9. That the arbitrariness of the system becomes even more apparent when one considers that the wording of the provision in question leads inevitably to accept the right to enjoy retirement by virtue of work not performed, con desconocimiento del elemental principio de que tal beneficio constituye el reconocimiento al derecho de descansar después de largos años de servicios. Y con el agravante de que tanto el derecho de cobrar estipendios a cargo del ex empleador como el de jubilarse en condiciones tan anómalas vendría a adquirirse por el solo hecho de haber trabajado seis meses en forma efectiva (decreto 1368/1963 ).
10. Que lo expuesto es suficiente para demostrar que no se está en presencia de una verdadera indemnización por despido arbitrario, sino de una especie de sanción represiva impuesta a la entidad que se niega a reincorporar al empleado; sanción que a su vez asume, desde el punto de vista de éste, el carácter a constraint, the more substantial the shorter was the period of work, since ultimately the art. 6 Decree 20268/1946 leads paradoxically to further benefit those with less seniority and less, however, who have more years of work.
Therefore, in accordance with the attorney general ruled in the case mentioned at fs. 378, and without prejudice to the right of actors to claim the compensation to which entitled any, is revoked as the original ruling could be the subject of an extraordinary appeal .- Eduardo A. Roberto E. Ortiz Basualdo .- Marco A. Chute .- Risoli .- Luis C. Joseph F. Cabral .- Bidau.
0 comments:
Post a Comment