Last, Nancy Liliana c / SAIC Curtarsa \u200b\u200b
Summaries:
1 .- While the expectation of continued employment has constitutional status in the art. 14 bis of the Constitution to give the workers' protection against arbitrary dismissal. " Anyway, the constituent did not choose the mode and extent of that protection and left it left to the prudence of the legislature as a matter of legislative policy, responding to this constitutional requirement, was enacted the Labor Contract System, which system does not prohibit the employer Protectoria have even dismissal without just cause in this case imposes the obligation to pay severance compensation as uncaused recipient in the decision of origin. Note that the arbitrary dismissal only creates the contractual liability of the principal and is priced in the Employment Contracts Act and it includes any loss suffered by the worker on that ground. In this case the Employment Contracts Act presumes without admitting the evidence to the contrary that the severance pay includes the material and moral damage suffered by the employee by reason the termination without cause the employment relationship and to set tariffs for repair, being that it can not, as claimed by the person concerned, be treated as an unlawful act culpable for civil law enacted unemployment.
2 .- It is settled doctrine of this Court that the worker is entitled to compensation for moral damages if concomitant with arbitrary dismissal, the main configurational committed an unlawful act of the factual to the civil law obligation also attributed to compensate. In the instant case does not arise because no evidence of proven or even been invoked in the application itself a clear complaint addressed to the employer of a malicious attitude of others the workplace, so the sentence must be confirmed. AGREEMENT
In the city of La Plata, 19 February, two thousand two, having been established in accordance with the provisions of the Agreement 2078, to be observed the following order of vote: Drs Salas, Hitters, Negri, of Lazzari, Pettigiani, San Martín, Pisano, Laborde, meet the judges of the Supreme Court in regular agreement for final sentencing in the case L. 72,119, "Last, Nancy Liliana against SAIC Curtarsa \u200b\u200bDismissal." BACKGROUND
The Labour Court was partially Mercedes lead to the application filed, with costs the defendant by the plaintiff and the items supported by the rejected. Latter inferred resource
special law inapplicable. Dictated
providence car and being the cause in a state of sentencing, the Supreme Court decided to propose and vote on the next
QUESTION Is founded the special appeal of inapplicability of law? VOTE
To the question posed, Mr. Justice Dr. Salas said
I. The trial court upheld the application filed by Nancy Liliana Curtarsa \u200b\u200bDure from SAIC in compensation in lieu of notice and seniority integration holding dismissal of the month of December 1991 Holiday month salary commensurate 1991.
rejected, however, compensation for damages for wrongful and emotional harm.
II. The plaintiff filed an extraordinary appeal of inapplicability of law in invoking violation of the arts. 12, 39 and 47 of Law 11,653, 212 of the Labor Contract Law, 34 incs. 4 and 5, paragraph "c", 36 inc. 2 and 384 of the Civil and Commercial Code, 1071 of the Civil Code of the Charter 11 provincial and 16, 17 and 18 of the Constitution.
III. The appeal, in my opinion, can not succeed.
1. The trial court in its ruling of fs. 218/220 row. upheld the doctrine of res judicata opposed by the defendant regarding the claim for compensation made in relation to the work accident suffered by the plaintiff given that, at the time, was activated for the repair of that misery in the field of common law which culminated in a judicially approved settlement.
For this reason, it was held in the contested decision that the compensation received at the event involved both the current and future damage. For this reason, res judicata precludes a new lawsuit in which the damage which compensation is claimed in full the previous repair. It was further noted in that decision, that "reagravación" is an institution regulated by the special law on labor-related accidents and its application should not be extended outside the framework of the same.
2. In the case of fs. 345/351 row. was given the verdict and sentence receptive the heads of damages relating to the release bearing in mind that their source was not denied by the driven, determined and better pay for the month of May 1991.
In order to claim compensatory damages for illegal origin Case stated that if this area was considered related to reagravación was rejected on the basis of res judicata host fs. 218/220 row. Therefore also be rejected. If you tried
the plaintiff continues to repair the fault is ancillary to the heads of damages resulting from the dismissal for the defendant acted maliciously, it is similarly rejection. Expressed at the failure to respect that if they claimed was related to the intention of giving the defendant not having given tasks in accordance with its diminished capacity, must then request and did not work according to their residual disability and eventually face your claim from art. 212 of the Labor Contract Law.
But if you tried to add the original court was the plaintiff prove that the dismissal was an unlawful characteristics generated by ancillary compensation the rate also was discarded because unemployment is a measure within the orbit of the powers of the employer with the consequent obligation in return for appropriate compensation be paid when, as in the case, is groundless dismissal.
Finally, in relation to the claim for damages "for pain and suffering. Sufferings "said the statement that also corresponded to a distinction, because if such claim is made to the caption" reagravación "was discarded for being part of that and if he was referring to the dismissal without just cause dismissed since also corresponded in the field of contract working around any material and / or moral is included in the concept of work and becomes compensable injury by a compensation fee law. Such compensation
then added covers including moral damage caused by the dismissal. It is also claimed that, in order to set the moral damage must be an additional conduct outside the contract employer's willful nature, which arises not verified in the case, being that even the statement of claim attributed to the employer a criminal attitude of others the workplace.
On point this Court has said that if the occasion and time of dismissal the principal engages in unlawful conduct that goes beyond the mere nonperformance of the obligation arising from the employment relationship, such fault entitle the clerk to compensation or repair the damage suffered by the unlawful dealings of that (arts. 1067, 1078 and 1109 of the Civil Code, conf. because L. 40,790, sent.'s 13 VI 1989).
3. These claims made by the appellant related to the rejection of the category "reagravación" disability by accident is also inadmissible.
This is so attentive to the failure of fs. 218/220 row. operated declared in respect of that indemnity claim of res judicata, which has the character of final judgments (conf because L. 53,282, sent.'s 7 VI 1994) and is then that the appellant can not now bring to review the appeal a matter that was resolved in due course as a preliminary objection decision that is final before the decision under appeal.
should be noted here that the grievances voiced by the appellant on the issue is one that believes that when deciding the doctrine of res judicata interposed by the defendant outside the resolved an issue raised in the original libel should be issued on the occasion of failure respect to that prior defense which was upheld by the absence of timely objection.
4. Nor is it appropriate the grievance related to the determination of remunerative basis to take into account in the calculation of compensation referred to in the art. 245 of the Labor Contract Law. This
thus determine the database is a typical question of fact which is behind the field assessment of the appeal other than the absurd assumption (conf because L. 45,194, sent.'s 6 XI 1990) and for review is required inexcusable collection is not fulfilled in the species eventually cite the statute violated the requirement pursuant to Art. 279 of the Civil and Commercial Code and legal doctrine (conf causes L. 60,225, sent. From 25 XI 1997, L. 61,937, sent.'s 2 VI 1998).
also be clarified that such inefficiency is not saved with the mention of art. 384 of the Code of Civil and Commercial given that the rules of sound criticism is not applicable in labor matters, where the principle of "appreciation in consciousness" about the evidence and material facts (art. 44 inc. "d", Law 11,653, conf . because L. 54,493, sent.'s 5 VII 1996).
Notwithstanding the foregoing, it should be noted that any numerical errors slipped into the court's finding of origin, are largely corrected in the same instance by way of clarification (conf because L. 75,379, sent. 20 XII of 2000) which was not raised in the species.
5. Nor operates the reversal of the burden of proof favors the appellant relied on the performance of the completion of hours extra, but governing procedural rules matter who says that impose the burden of proof (conf because L. 57,359, sent.'s 5 VII 1996).
6. Before treatment the following grievance must sign the manifest lack of clarity that displays recursive libel, a fact which was also verified in the application, which led the court to examine several possibilities grade for each item to the total lack of accuracy of the claim.
However, the postures that are formulated in the action in order to reject the category of compensatory damages for dismissal "unlawful" as understood by the applicant are not worthy of consideration to move this part of the delivery.
indeed glaring evidence of the appellant a legal blur the issue, noting that this Court has ruled as the expectation of continued employment has constitutional status in the art. 14 bis of the Constitution to give the workers' protection against arbitrary dismissal. " Anyway, the constituent did not choose the mode and extent of that protection and left it left to the prudence of the legislature as a matter of legislative policy, in response to this constitutional requirement, was passed the Labor Contract System (TBI, 20,744 and changes), whose system does not prohibit the employer Protectoria have even dismissal without just cause in this case imposes the obligation to pay unemployment compensation for the uncaused (sections 232 and 245, LCT; conf. because L. 38,239, sent.'s 21 XI 1989) as recipient in the original ruling.
should be noted that the arbitrary dismissal only creates the contractual liability of the principal and is priced in the Employment Contracts Act and it includes any loss suffered by the worker on that ground. In this case the Employment Contracts Act presumes without admitting the evidence to the contrary that the severance pay includes the material and moral damage suffered by the employee by reason of the termination without cause the employment relationship and to set tariffs the for repair, being that it can not, as claimed by the person concerned, be treated as an unlawful act culpable for civil law enacted unemployment (conf because L. 41,990, sent.'s 3 IV 1990).
In this context it is clear that rescission of the employer as either becomes illegal as stated in the appellant because that at the request of the worker, has not revised its decision and no less so because the clerk is forced to sue the collection of compensation arising from the dismissal. Nor
becomes abusive and fraudulent as the unemployment rate the applicant's failure to provide work under the residual capacity of the promoter of the trial for as unquestionably judge ruled the home, the actor had so requested the employer and address his claim under art. 212 of the Labor Contract Law.
7. No better luck the injury led to question the rejection of claim for damages for pain and suffering.
Indeed, it is settled doctrine of this Court that the worker is entitled to the compensation for moral damages if concomitant with arbitrary dismissal, the main configurational committed an unlawful act of the factual to the civil law also attaches liability compensate (arts. 1068, 1078 and conc., Civil Code; conf. because L. 42,327, sent. from 21 VIII 1990).
In the species, the court understood grade that emerges from the ground because it was not even cited in the application itself a clear complaint addressed to the employer of a malicious attitude outside the workplace, decision must stand firm against the repeated inability of libel recursive considering that refers to the assessment testing and the interpretation of the writings constituting the process, go unreported violation of the procedural rule that governs the work of judges axiological the forum.
IV. Without prejudice to the resolution reserving the federal case alleged violation of rules of the Constitution, since its introduction does not itself justify the existence of a constitutional case or sufficient to cause the automatic displacement of local laws on issues that by their nature are not federal (conf causes L. 43,795, sent.'s 20 II 1990, "Agreements and Judgments, 1990, vol. I, p. 184, L. 46,267, sent.'s 21 V 1991, "Agreements and Judgments, 1991, vol. I, p. 825, among others).
V. As such, the appeal must be dismissed, with costs (art. 289, CPCC).
Voting in the negative.
to the same question, Mr. Justice Dr. Hitters said
1. I disagree with the criteria set forth by my colleague in III paragraphs 4 and 6, only the need to order allegedly violated by the plaintiff who invokes the absurd, the legal precept governing standard of proof: for the art. 44 inc. "D", Law 11,653. As I have argued repeatedly with the basics I have outlined in previous votes and those who refer (conf causes L. 55,328, 54,493 L.; L. 57,513, all sents.'s 5 VII 1996, L. 58,528, sent. of 8 VII 1997, etc.) unless I leave my opinion.
2. Established So I think that in this particular case anyway corresponding rejection of the grievance in question.
I hold so; for the opening of the extraordinary way the figure of absurdity, it is necessary, clearly stating the logical or material error committed by the court level, a matter not shown in the species mere exposure to a harsh test for the assessment of the evidence presented was carried out in the ruling.
So in order to better determine the normal and customary payment made by the court a quo does not show the person alleging a serious defect as the sum of $ 665 is not for the salary of November 1991 as alleged in the its defense fs receipts. 4 / 5 given that such receipts are for the second half of November and early December 1991 but both the total ($ 665) is including the annual salary supplement.
Moreover, in order not to moral damages, according to the records of the case the existence of a fact unlawful breaking itself independent of employment.
the foregoing and my commitment to the solution advocated by the preopinante colleague in order for the remaining grievances, I propose the rejection of the appeal, with costs (art. 289, CPCC).
Voting in the negative.
to the same question, Mr. Justice Dr. Negri said
As to the adequacy of the appeal consider that it is necessary to quote or mention of the rule expressed in the work process axiological guides the work of judges when the identified so that no doubts remain: namely, that the appellant relates to the legal provision that authorizes judges to appreciate merit "in conscience "evidentiary material.
In this species, although the appellant identifies the rule eventually trampled (folio 368 overleaf.) Fails to prove the existence of absurd to simple subjective assessments made in relation to the assessment that the evidence leaning to the cause made the court a quo. In other
adhere to the vote of Dr. Chambers.
Voting in the negative. Mr. Judge
Lázzari doctor, on the same grounds of Mr. Justice Dr. Salas, also voted in the negative. Mr. Judge
Pettigiani doctor, on the same grounds of Mr. Justice Dr. Negri, also voted in the negative.
the judges doctors San Martín, Pisano and Laborde, on the same grounds of Mr. Justice Dr. Salas, also voted in the negative.
ended with the agreement, gives the following Judgement
As stated in the agreement above, rejected the special appeal brought, with costs (art. 289, CPCC).
presents notified and refunded.
0 comments:
Post a Comment