Ramona Dominguez c / AM Schönholzer SA s / Dismissal.
Summaries:
1 .- In the case of a wage outcome and considering that the drop in performance is not attributable, but it was ordered by the employer, regardless of its justification, being hit by what has been ruled by art 112 of the LCT, which puts you in charge of employer responsibility to provide enough work for the salary reaches the level obtained to determine a salary amount not less than the basic agreement of the activity.
2 .- Being a homeworker, in principle the relationship is governed by law 12,713, which includes both qualified small business workshop leaders, as home operators and whose performance may or may not meet the definition of relationship
dependent
Buenos Aires, August 19, 2001 .-
view and consider Pera resolve the appeal has been filed, Dr.. LAURA MARÍA Rodríguez said: The defendant appeals her sentence before her body, as it considers unjustified the distractors, on the salary used as a basis for calculating the heads of damages, and imposition of costs and the plaintiff also his opponent is wrong on the wage sont taken into account in determining compensation are derived from the distractors.
Being a homeworker, in principle the relationship is governed by law 12,713, which includes both skilled workshop leaders small business, like home operators and whose performance may or may not meet the definition of a dependent relationship (arts. 21 LCT). So when a worker trick in terms of art. 25 do the TBI, they are applicable provisions of the LCT-Under the terms of the lawsuit was left locked in the relationship process must be analyzed in the context of TBI agreement and the provisions of art. 2 of the LCT
The arguments that tests the action to justify the absence of reliable intimation prior to notice of termination of the link, focusing on the characteristics that distinguish the work at home, in any way Rattle the obligations of the parties in the relationship, to adjust their actions even chance of ending it, the principle of legality of penalties, reasonableness and good faith that springs from the art, 69 of the LCT As in that order of ideas, taking into account the long time lag between the letter document you send defendant and the plaintiff in response to your request dated 07/10/1995 task (pages 75 whose original work on what aggregate cord runs), which was cited expressly to perform the work for the new season, 'and the distractors document communicated by letter dated 23.11.1995 (pages 73), which was foisted on the plaintiff his non-attendance to remove duties, imposed on the employer the need to clarify before the distractors the situation, end communications regardless of the document made by letter about it prior to 07/10/1998, the truth is that for about four months old the defendant itself failed to comply with the subpoena that promise, especially in the case of a worker who worked outside the home setting and because it had little chance of knowing the actual circumstances leading to the failure to provide clothing for their production. As ideas do in such an order could be described as hasty and contrary to good faith or dismissal based on lack of submission of the plaintiff to withdraw work, when in the worst cases, only the dubious situation would if there was to know whether or not they should attend, a situation that in no way justifies the distractors. So in order to propose the above considerations confirm the decision-making as it considered unjustified. Both sides' grievances
base remunerative taken not account for the calculation of severance pay the plaintiff against the pay raise in the decision-making supported by March 1993 is the result of a dramatic decline in the number of items delivered by the reversed it to your clothing. This end is confirmed by the accounting report to fs obrante 277/279, so that in the case of a wage result and that the drop in performance is not attributable, but was ordered by the employer, regardless of its justification, something that does not correspond rather not clarify the reason for the distractors, is reached by the rules set forth by Art 112 of the LCT, which puts you in charge of employer responsibility to provide enough work for the salary reaches the level obtained to determine a salary amount not less than the basic agreement of the activity. For which reason in that vein, could be modified to take the decision and the basis for calculating the conventional base salary that given the mandatory nature of the rule is the minimum wage for non-derogable the parties, proceed accordingly treat the defendant's grievance about pay to the extent that focuses on questioning amounts less than the basic agreement.
Given the diversity of types of garments made by the plaintiff, as extracted from the documents in the forms annexed No. rope that runs through 1480 and photocopies of which held a 173 fs, recognized by the defendant to 260 fs, and given the multiplicity specialties covered by the Convention 204/93 Apparel Industry is estimated adjusted in terms of art. 56 of the LCT, taking into account the age and variety of clothing made, set the salary equal to the monthly average of all categories, from $ 306.90 effect on the date of distractors. Thus integration corresponding month of the dismissal the sum of $ 93.09 $ 664.95 notice, seniority pay $ 3682.8, $ 279.14 proportional holidays. So the total amount of conviction to be raised to the sum of $ 4719.98.
Because of the new way that resolves the lawsuit, under the provisions of art. 279 of the CPCC, corresponds to rescind the award of costs and fees regulations, carrying their determination original form, why should not treat the appeal costs and fees. Costas
in both instances by the defendant (art. 68 CPCC).
In this regard taking into account the outcome of litigation, its economic value, merit and extent of the work and regulated in the art. 38 of the TO., Legislative Decree 16638/57, 20243 and arts.6 law, 7,8,9,19,39 and coincidental rules. law 21839, fixing the fees of legal representation of the plaintiff for his performance in the first instance in the sum of $ 1300, the legal representation of the defendant for equal work in the $ 900, those of the forensic expert at $ 700, while on the work done on appeal are set of legal representation of plaintiffs in the $ 320 and the legal representation of the defendant in the $ 220, at current rates (Law 23928) , art. 30 LO art. 14 Law 21039.
In so What emerges from the records of the case that an accountant Mario José Miraldi was removed fs. 446, performing a new people Northern and designated expert accountant fs Carolina Ponce vain. 449, to be issued on the measure ordered by the court of origin fs. 446 first paragraph, it Ponce regular fees in the amount of $ 400, at current rates (Law 23,928) ... 38 L.0 art. and Legislative Decree 16.638/57.
DRA. GRACIELA E. GONZALEZ, said: Adhere to a vote of the DRA. LAURA MARIA RODRIGUEZ, to share their foundations.
As the above results from the agreement (art. 125, 2 * part, Law 18,345), the Court RESOLVED: 1) change Case of. body and increase the amount of condemnation of the sum of $ 4,719.98, confirming what others decide. 2) Costs in both instances by reversed it gives. 3) To rescind the regulated fees in the previous instance and determine them in original form as indicated in paragraph concerned. Register. notifíquese and refunded.
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