SUPREME COURT APPEAL BOARD OF LABOR
Magistrate: GUSTAVO MENDOZA José Gnecco
Filing No. 26327 Act No. 64
Bogota DC, thirteen (13) September, two thousand six (2006).
the Court resolves the appeal, which brought the legal guardian of the Coffee Cooperative of SALGAR LTDA. COOCAFISA LTDA., Against the ruling of the Superior Court Judicial District of Antioch dated January 17, 2005, issued in the ordinary process that promoted labor RENEIRA DE JESUS RIOS ORTIZ, in his own behalf and on behalf of their minor daughters Catherine and VALERIA CEBALLOS RIOS.
I. BACKGROUND
The appellant was sued for before the declaration that there was an employment relationship between it and Mr. SILVIO CEBALLOS LONDOÑO, governed by a contract of fixed term less than a year that began on October 7, 1996, due on February 6, 1997, extended on until the day of his death, he was ordered to pay monies due to the following: vacation or compensation, premium services, layoffs, layoffs interests bent; compensation from shoes and clothing of work; family allowance, overtime generated during the entire employment relationship, Sunday and holidays; countervailing charge overnight, 50% of the survivor pension from January 6, 2003 for it and 25% to each of his two daughters , payment of allowances due indexed, as well as the additional law index of all sums and penalty moratorium.
In support of its claim argued that Silvio Ceballos Londoño lived with for fifteen years, they had two daughters who were born in the years 1998 and 2000, his constant companion died on January 6, 2003, date for which serviced the defendant, the employment relationship was governed by a contract of employment between October 7, 1996 and February 6, 1997, extended until the date of death, his partner initially served as an adjunct service point in buying coffee at a local winery the defendant and from the 11 February 1997 began to play guardhouse work in the same room, from March 11, 1998 signed contracts for the provision of services to meet the work being developed under the same conditions, ie fulfilling work schedule and taking orders on its business development in exchange for payment, the above circumstances are set forth in clause one of those contracts, in August 2000 it acquired the connotation of "living will", that is, they had permission to reside in the cellar, the defendant allegedly had no contractual relationship with him than let him live in that place, no However it continued to receive their pay on a regular basis, was affiliated to the Pension Fund Horizon from October 7, 1996 until July 31, 2000, and EPS Cafesalud as a dependent worker, as it realizes the letter May 2 sent by the company, on the occasion of the death of Ceballos Londoño the defendant paid the plaintiff $ 2'100 .000, oo, so called "advance funeral for help, but you owe the remuneration claimed was in the process.
entity defendant objected to the prosperity of the claims. As to the facts admitted by the applicant coexistence with Mr. Ceballos, but said he was satisfied that during the time stated in the lawsuit, also admitted the procreation of the two daughters, the date of death of that Sir, the work performed, which was affiliated with Horizon pension and gave him the sum mentioned as a humanitarian release of the Cooperative. The others refused. In his defense suggested the statute of limitations defense, payment, lack of obligation and lack of cause and object (Folios 59 to 64 of main booklet.)
The Civil Circuit Court of Ciudad Bolivar (Antioquia), in a ruling dated October 14, 2004 declared the existence of the employment relationship between the October 7, 1996 and January 6, 2003, ordered the defendant to acknowledge and pay the plaintiff and her two daughters the sum of $ 24'049 .914, oo for the following items:
1. Vacation: $ 541,943, oo
2. Premium services: $ 1'083 .887, oo
3. Severance: $ 3'070 .429, oo
4. Interest layoffs: $ 126,687, oo
5. Dress shoes and work: $ 94,400, oo
6. Child benefit: $ 557,000, oo
7. Overtime Night: $ 4'199 .778, oo
8. Surcharge for night work: $ 640,673, oo
9. Work on public holidays surcharge: $ 4'199 .778, oo
10. Backward counters: $ 11'877 .025, oo
also sentenced her to recognize and pay a survivor's pension in the amount of $ 475,081, oo per month as of November 1, 2004, along with their statutory annual increases. Declared partially tested except for limitation of rights caused before 30 April 2001 and sentenced the defendant to pay the costs by 75%. (Folios 294 to 311)
II. THE JUDGEMENT OF THE COURT
both parties appealed and the Court confirmed in its entirety the decision of the court (pages 347 to 370).
First, and for which the appeal lies, had been demonstrated that coexistence between the applicant and Mr. Ceballos Londoño, it was a fact accepted by the defendant to answer the libel introducer, which he also realizes abundant testimony and document folio 345.
on the demonstration of a beneficiary of a survivor's pension when claiming the status of permanent partner, felt that this is in accordance with the provisions of Article 11 of Decree 1889 of 1994.
Regarding the working relationship between the aforementioned Mr. and defendant, he was struck by the fact that the December 10, 2000 the employee requested that he be allowed to continue as living in the cellar and that if possible be granted a monthly allowance of $ 384,000, oo. And despite having risen such a request by that date, the company had canceled the sum of $ 192,000, oo for the period between 1 and 15 that month and year, ie given the benefit requested by the worker retroactively.
The testimony of Charles Elkin Zapata González, María Elena Gutiérrez, Luis Horacio Bolivar and Jaime de Jesus Zapata Bedoya (Folios 291, 272, 268.269, 266 and 267), allowed him to conclude that the deceased originally held a formal job with the defendant, that the relationship was novando as to the type of contract, until the worker made the request of yore and the company gave a boost monthly $ 384,000, oo.
In documents folios 173 ff, 233, 234, 236 and 277 also inferred that the company paid memberships to health and occupational hazards, a situation that undermines the argument of the defendant in the sense that it made those concessions humanitarian reasons, collaboration and simple-mindedness, because according to the evidence listed above, Mr. Ceballos had been linked as a guard time ago, because Management that the company sought to make wine not stay alone, so much so that he paid Mr. Zapata Gonzalez to replace Ceballos on days of rest.
was also able to infer from such evidence that the deceased slept in the warehouse, which will generate in return a monthly sum of $ 384,000, oo, will facilitate access to credit offered by the company, contributed to the fund for employees and advances obtained, as evidenced with the 187 sheet paper, except that it was withholding.
So, said the Court, the presumption in favor of the plaintiff enshrined in Article 24 of the Substantive Labour did not weaken and remain intact on the contract of employment.
dismissed the company's argument to the prescription point since as demonstrated, the employment relationship was in effect until January 6, 2003, and whether the claim was filed on April 20, 2004 for that data had not yet operated the legal phenomenon.
III. THE APPEAL
What brought the defendant and he claims that the court case the Court so that the seat of the court revoked the request and, instead, been acquitted by the National Federation of Coffee Growers (Sic) versus the claims of the plaintiff.
To that end, and invoking the grounds of appeal first proposed two charges that were not replicated, and then the Court proceeds to his studio in the order of presentation. FIRST CARGO
By indirectly accused the ruling by improper application of Articles 1, 5, 8, 15, 22, 23 and 24 (the latter surrogate for items 1 and 2 of Act 50 of 1990), 27, 161 surrogate for 20 of Law 50 ibid, 162, 168 surrogate by 24 of the Act, 177 1, as amended by Law 51 of 1983, 179 26, amended by Law 789 of 2002, 181 surrogate for 31 of Law 50 above, 186, 189, 239 and 233 as amended by the 7 and 10 of Act 11 of 1984, 234, 249, 253 surrogate for 17 of Decree 2351 of 1965, 258, amended by Law 11, 11 and 306 referred to the Labour Code, Articles 98 and 99 of Act 50 of 1990, 1 of Act 52 of 1975; 2 of Decree 116 of 1976 and, 14, 46, 47, 48 and 50 of Act 100 of 1993. Violation that occurred in obvious errors made by the improper evaluation of evidence.
ascribes to the Court the commission of the following obvious errors of fact:
"1. To consider demonstrated without being so, the existence of employment during the period covered from August 2000 to January 6, 2003.
• 2. Shown not to declare them and is that the July 31 of 2000 ended the last working relationship with the defendant's cause.
"3. Shown not to declare them and is, that from August 2000 the deceased did not receive any order to work by the defendant or was subject to its rules of procedure.
"4. Shown not to declare them and is that in December 2000, the deceased asked the defendant to be allowed to remain in the warehouse as "living", which he accepted the cooperative without requiring any employment status.
"5. Shown not to declare them and is, that while the cause was the quality of "living" in the cellar acted with absolute autonomy in and out of it without being subject to any time.
"6. Shown not to declare them and is, that the deceased held seven contracts with the defendant completely independent of each other, at the end of which the deceased received the corresponding payment for all items of work such as wages, vacation and benefits social.
"7. To consider demonstrated without being so, the value of the survivor pension in this case would be $ 475,081 per month.
"8. To consider demonstrated without being so, the applicant Reneira of Jesus Rios Ortiz is the heir of the deceased.
"9. Estándolo shown not to declare that from August 2000 until his death the deceased did not provide any service to the defendant.
. "10 To consider demonstrated beyond be, that the layoffs caused in favor of the deceased at the time of his death amounted to $ 3'070 .429, and interest $ 126,687. "
As evidence and parts process unduly appreciated complaint the following:
Contracts work (Folios 20 to 23, 25 to 28, 30 to 35 and 35 to 38), settlement of labor contracts (Folios 70, 76, 82 and 86), contract services (Folios 40, 41, 91 , 92, 42 and 43); notice for termination of employment contracts to fixed term (Folios 69, 75, 81 and 87); office of the company to the severance fund to report on the termination of the employment contract (Folios 167 and 168), certification of the defendant obrante to pages 45 and 46 ; request of the deceased to be allowed to live in the new winery Salgar no cost, and the request that "if possible" be granted an amount for expenses (Folios 95 and 171); response company the request of the deceased (Folios 96 and 172); values \u200b\u200bsupplied by the company to the deceased by way of "voluntary assistance" (Folio 334); affiliation of the deceased to the Pension Fund and Severance Horizonte, to Cafesalud and Comfenalco (Folios 122, 121, 236, 237-242, 244, 157 and 160), aid volunteers from the defendant by the deceased from December 2000 to December 2002 (pages 173-222) judicial inspection (Folios 289 and following), demand response (a13 Folios 2 and 59 to 64); questioning from both sides acquitted (Folios 225 to 229); documents folios 187, 233, 234, 236 and 277; expert ( Folios 245 to 252), testimony of Faber Londoño Dario Parra, Jaime Alexander Henao Bermúdez, Jaime de Jesus Zapata, Elba Ceballos Luz Londoño, Jorge Wilmar Rios Garcia, Elkin Zapata Carlos Gonzalez, Hernan Cuervo Restrepo Jesus, Mary Elena Gutierrez and Luis Horacio Rua Bolivar Zapata.
states that the request raised by Ceballos London on December 10, 2000 (pages 95 and 171), shows that even when he remained living in the warehouse of the company had no employment contract with her, it was evident that he believed not entitled to any compensation because the company asked "if possible" gives "an encouragement" for living expenses. Application also indicates that by the fall of the grain (brown), led to the inexorable closing of many points of purchase of coffee, units that were closed and left with no furniture, no computers and no function, because by which the defendant and did not require a guard in there.
added that this document and those that lie at pages 96 and 172, show that at the request of the deceased was allowed to live in one of the wineries from December 2000 until his death which occurred on January 6, 2003 .
warns that the record no evidence showing that the defendant gave an order or requirement to the deceased as the "living" of the aforementioned warehouse. Record
events such as the payment of a money-aid of $ 192,000, oo and membership of an EPS do not demonstrate the presence of an employment contract and the presumption of its existence can not be derived of these facts without showing clearly demonstrated that the deceased was committed to serving the defendant, on which there is not the only evidence as related to their presence in the warehouse from December 2000, are the aforementioned request (Folios 96 and 171) and the response of the defendant (Folios 97 and 172), which is reproduced below for considering that it does not appear that the Cooperative would have done any work requirements or work or service commitment, however, allowed to express the lack of employment, so that does not operate the presumption in Article 24 of the Labor Code.
The sentences imposed by the judge says censorship, resulting from the incorrect assessment of the status of "living" of the deceased from December 2000, because the links above work was completed from July 31, 2000, as evidenced by the documents of 42 pages 44, which means that labor rights resulting from those contracts were already prescribed for the April 20, 2004 when filed.
asserts that the four contracts of employment that occurred between the parties, were cleared as shown at pages 70, 76, 82 and 88, where the wrong can also be seen winding which upheld the Court, ignoring the fact that over each contract cleared the layoffs, their interests, holidays and bonuses, being buttoned all in relation to each of them. Arising thus a grave error to confirm that settlement contradicting the provisions of Articles 98 and 99 of Act 50 of 1990, calculating the severance from the October 7, 1996 until January 6, 2003, date of death of Ceballos Londoño.
But even accepting, for the sake of argument, that the deceased worked in that time, the layoffs had to be discharged with the salary for each annuity, taking into account the amounts paid for such performance in the assessments that were made after each contract and the amounts appropriated Layoffs in the Fund, to force the right to layoffs and interests of the years 1996 to 2000 were prescribed for when it filed the lawsuit April 20, 2004.
states that considering that it was not shown express or tacit agreement of the deceased with the Cooperative to provide a service while he was like "living" have no legal grounds the sentences imposed by the contested decision and the related sobreremuneración for work night involves the provision of a service, but if the deceased was at night as the "living" and lay down to sleep there, what service is that it is sobreremunerando? Nor does
legal support conviction for overtime because if he slept in the workplace, in terms of Article 162 of the Labor Code had no legal maximum working week.
also criticized the condemnation of the survivor's pension in favor of the plaintiff, while not proven its status as heir, also on this board was made a blunder in his settlement because if won by not being affiliated to a pension fund while he was like "living", then had to adhere to the regulations of Article 48 of Act 100 of 1993 which provides that the amount of the pension is equivalent 45% of income settlement basis, which means the amount of $ 172,800, oo if given the connotation salary of $ 192,000 to relief that the defendant was granted fortnightly by the deceased (folio 173 to 222).
This is followed by the study explores the oral evidence, to prove the errors of assessment in which the Court erred.
V. The Court's
Although the scope of appeal the appellant claims that instance headquarters reverse the sentence of the first to be dismissed instead to the National Federation of Coffee Growers, a corporation that is not a party this process, the Board understands referred to the Cooperative defendant, it acts as an agent of it.
In point to the existence of a single employment relationship between the parties, it is clear that the dispute revolves around it ceased as of December 2000, as was the date on which the actor asked the company be allowed to continue living in the cellar in which it provides services of guardhouse and was recognized for its stimulus spending to $ 384,000, oo, according to the paper sheet 95 indicted for his mistaken assessment.
The Court found that the process was established that the cause was initially a formal employment relationship with the cooperative, relationship that was novando regarding the type of contract, even when the company responded favorably to the request made by the December 10, 2000 to be allowed to be as "living" in the hold of the company and be given a boost of $ 384,000, oo, as apparent from the documents of pages 95 and 96, and also that the employer was paying memberships in health and occupational hazards (Folios 233, 234, 236 and 277), reasons why not give him credibility to that of the Cooperative as these payments are made on humanitarian grounds, collaboration or simple-mindedness, trying to justify his relationship with the deceased in the last period, therefore, concluded the worker had been connected to the entity acting as caretaker since long ago, on an ongoing relationship and continuing to monitor a warehouse run by the defendant until January 6, 2003 when he died.
At the conclusion above also allowed reaching the assessment made of the documents at pages 173 and following, which record the monthly payments made by the company to cause the amount of $ 384,000, oo he called "stimulus", which realize that it will give loans to the defendant, contributed to the fund of employees, obtained in advance from your "stimulus" and he was withholding. And, rejected humanitarian reasons invoked by the defendant to justify his relationship with the deceased, said that Mr. Ceballos was linked for some time now with the defendant company sought the winery was not only to the extent that hired Mr. Carlos Zapata Gonzalez to replace Mr. Ceballos, who remained on the premises of the call to trial and spent the night in his cellar, which entitled him to receive the monthly sum of $ 384.000.oo. above the minimum wage, that the document in which the actor claims to be allowed to live in the well were made while serving on guard and in this case who provided the service was protected the presumption enshrined in Article 24 of the Labour Code, which remained intact.
judgmental support to destroy the contested decision, partly based on reasoning characteristic of the trial evidence, which, as you know, not good in the matching of work, the appellant argues, in essence, that remains unproved existence of an order or requirement of the cooperative for the cause, nor that he had committed to giving a service, which he says, there is no proof.
objecting But that reasoning does not refute what the court concluded that the evidence assessed, several of which are not subject to analysis in the post, as the testimony, which concluded the service by the deceased and on the other hand, it should be noted that to operate on the presumption of employment contract, which was one of the pillars of the contested decision, no test is required on any agreement between the parties, it suffices to prove the provision of services who claims he was a worker. And, of course, also requires proof of a job requirement, demonstration of subordination, as indicated fully understood the presumption is intended to obviate the test precisely that element of the contract.
It follows from the above which is not shown in the commission of errors of fact protruding identified with numbers 1, 2, 3, 4, 5 and 9.
Looking to the survivor pension, the study first addressed the sensor error identified by the number 8, related to that did not demonstrate that the plaintiff was the heir of the deceased.
regard, it is necessary to note that the Court found that condition proved based on its assessment that the answer to the application, testing and certification testimonial to work at page 244 that realizes that the deceased registered it as a beneficiary for health services to the Cafesalud EPS, which in
the terms of Article 11 of Decree 1889 of 1994, it assumed the status of permanent companion.
Indeed the fact triggered when he answered the first of the originating claim, admitted that the applicant was the constant companion of Mr. Ceballos Londoño, just not aware of time spent living (Folios 2 and 59).
Similarly, and according to the certification of yore, the deceased was registered as beneficiaries to the EPS Cafesalud to the plaintiff and her two daughters, a circumstance which may be an indication of the quality of the applicant's permanent companion.
In this vein, there is not a mistake ostensibly to assess the aforementioned procedural item, or certification of yore. Whenever the qualified test on appeal fails to demonstrate the error foisted on the Court, the Board is relieved of the study of the testimony also claims its wrong assessment.
To support the error number 7, that is, that the Court gave demonstrated without being so that the value of the survivor pension was $ 475,081, oo, it is argued in the position that if he had applied for liquidation Article 48 Act 100 of 1993, which states that the pension is equivalent to 45% of the revenue base of settlement, would find that the initial amount of pension was $ 172,800, oo and not the sum for which convicted (Folios 18, 23 and 24 of the notebook of the Court).
this regard and without much effort we can infer that the error is saddled not factual in nature, since before a mistake originated in the appraisal of evidence, it derives from the direct infringement of the rule in question, which of course is not possible to consider the indirect route chosen for the attack.
similar situation occurs in respect of overtime, as the censor says that if the deceased lived in the cellar, had to take into account that according to Article 162 of the Labor Code that had no legal maximum working week. But that reasoning does not raise an error related to the facts of the case but with no use of a law, matter, and presented is purely legal in nature and as such outside the indirect route that directs the office.
regard to layoffs and interests, censorship, the Court attributed the mistake to have given proven, without being so, the former amounted to $ 3'070 .429, oo and the second at $ 126,687, oo.
This argues that the four contracts was working with Ceballos Londoño were cleared as shown at pages 70, 76, 82 and 88, which allows us to deduce the mistake of the court to confirm the liquidation of these values \u200b\u200bignoring the fact that for each contract had been settled, being all buttoned up in relation to each of them, thus contradicting the Articles 98 and 99 of Act 50 of 1990, it had to be liquidated into account from the October 7, 1996 until January 6, 2003, date of death of the deceased and, based on a figure that does not correspond to the wages earned during the years covered by this settlement.
addition, the sake of argument, adds the censorship, as the settlement had to be made in installments, this means that for the years 1996 to 2000 were prescribed in response to the lawsuit was filed in April 2004. Meanwhile
and to confirm the decision of the Court, the Court prohijó the way they conducted the layoffs and liquidation of their interests, which was established as follows, as we read in the Case a quo :
"If the employer had not had (sic) member of the employee to a severance fund as of March 28, 1998, as is clear from the documents before a folio 287 of the record, then came to him the obligation to settle and cancel the benefit upon termination of employment contract (art. 249 of the CS of T.), that is, January 6, 2003. Consequently, applicants are entitled to be paid the severance caused SILVIO for LONDOÑO CEBALLOS from that date (March 28/98).
"As the unemployment benefit equivalent to one month salary for every year of work (art. 249 above) and settled with the formula of multiplying the basic monthly salary by the number of days worked and the result is divided by 360 , we obtain the following amount for that item: $ 633,441, oo pay for 1,745 days divided by 360 gives us a total of $ 3'070 .429, in addition to that amount of severance to be canceled to the plaintiffs. "
Under reported evidence of censorship, especially the procedure on pages 70, 76, 82 and 88, is certainly labor contracts signed during the years 1996 and 1997, were liquidated and the deceased was paid social benefits and, according to the paper's help folio 287 severance caused during the years 1996 and 1997 was recorded at Severance Fund Horizonte.
However, from March 11th, 1998 lies no proof to support the payment of those emoluments labor, particularly those related to unemployment benefit and interest, or that the former had entered into a severance fund .
This means that from the date recorded the obligation in this matter was not satisfied and therefore the defendant should cover payment for these rights and, in fact so stated by the judges at first instance, even if the severance pay liquidated incorrectly, as will be seen to be a response to the second charge. SECOND CHARGE
For the direct path sentence accused the direct infringement of Articles 14, 46, 47, 48 and 50 of Act 100 of 1993, 98 and 99 of Act 50 of 1990, 234 of the Substantive Labour, misapplication of Article 253 of the Labor Code, substituted by 17 of Decree 2351 of 1965.
As for the unemployment benefit paid notes that went wrong, as was done retrospectively But that should not be subject to Article 99 of Act 50 of 1990, ie, annuities and cut at 31 December each year, for the deceased in this matter not subject to the traditional system of severance. Mistaken conviction also affected the interest.
That had applied Articles 98 and 99
of Law 50 of 1990, the Court would have realized that separations for the years 1996-2000, inclusive, were prescribed for 20 April 2004 date on which the suit was filed.
For the survivor pension claims that the Court committed legal error in another it certainly glared support conviction that within the year preceding the death of Mr. Ceballos Londoño, the defendant was not a member of the general pension system, therefore, its clearance should be in accordance with the provisions of Article 48 of Law 100 1993 which provides that the survivor pension equal to 45% of the revenue base of liquidation, in which it emerges that offers a pension so calculated is below the legal minimum wage but reset to that amount so to dispose the third paragraph of Article 48 ibid .
error also highlights another judge to determine that the pension would be adjusted each January 1. January to variation of the monthly minimum wage, ignoring Article 14 of Act 100 of 1993 which sets out the adjustments for all pension based on the Consumer Price Index.
Finally, passing on the Court condemn the error of dress shoes and work an amount of money calculated by expert opinion, ignoring the prohibition in Article 234 of the Labor Code and the settled jurisprudence of the Labour Division of the Supreme Court Justice, in the sense that this provision has a purpose that it would be impossible to comply with the separation of the worker.
VI. The Court's legal errors
Five censorship ascribed to the Tribunal, relating to the following topics: assessment of the unemployment, caused prescription until 2000, settlement of survivor's pension, how the court ordered the pension adjustment and payment of money the provision of footwear and clothing for work.
1. Settlement of the unemployment benefit. In
point the procedure used by the judges of the request for settlement of severance should be noted that the Tribunal was wrong in the way of settlement, as actually applied the traditional regime, that is, under Chapter VII of Title VIII of the Code Substantive Labour in spite of that it was not applicable, while the deceased was governed by the provisions of Act 50 of 1990 in this regard, Article 99 states that such assistance must be settled by annual cut at December 31 each year, or the fraction of the year.
In this vein, it is clear that the Court erred in a lumpy and, in this regard, the charge is successful, married debiéndose partially judgment.
2. Prescription of the unemployment caused between the years 1996 to 2000.
As was said earlier, taking into account the initial end of the employment relationship, which was on 7 October 1996 point on which there was no dispute between the parties, it is clear that the regulations applicable to the severance payment is provided for in Act 50 of 1990, Articles 98 and 99, who envisioned a new regime for workers linked from of January 1, 1991 or who are bound at that time expressed their desire to benefit from the new system, consisting of an annual settlement to court on 31 December each year and its subsequent entry into a severance fund more than 14 February the following year.
above means that from that date begins to run the statute of limitations of three years providing Articles 488 of the Labor Code and 151 of the Code of Labour and Social Security, which allows to deduce that in fact the unemployment benefit was not recorded in the time provided by law and which are caused in the years 1998, 1999 and 2000 is required, since the interruption of the limitation occurred on April 20, 2004 with the filing of the application (folio 50). Front
specific subject of the requirement of the aforementioned provision in the absence of appropriation of the sums that the employee is entitled to a fund established by law for that purpose, he explained the Chamber of the Court in Case October 12 2004, establishment No. 23794:
"From what follows, so clear, that in this regime of unemployment should make the payment of the same year by entering the value by 15 February next year, date from which it is due and therefore starts the statute of limitations for the respective action, in accordance with Article 488 of the CS of T and 151 T. CP and SS
"The appellant goes to Articles 2 and 3 of Decree 1176 of 1,991, which regulates articles 98 and 99 of Law 50 of 1,990, to argue that the dismissal is due at the end of the contract.
"It is true that paragraph of Article 3 states that" The closure of the unemployment benefit that the present article shall be as provided in Articles 249 and following of the Labor Code.
"And the way to settle the severance provided for in Article 249 of the Labor Code, is a month's salary for each year of service and proportionately for fractions of a year.
"It is true that in that article was ordered to pay the severance pay to terminate the employment contract, but it was the beginning of these considerations, the Code is traditional system that applies to workers bound by a contract of employment before 1 January 1991, except those that would have been welcomed to the new system, as happened with the actor, and therefore in their case was settled annually and appropriate before 15 February next year, unless the balance of unemployment for the worker who has not been delivered to the bottom, this is for the time worked in 1995 to 10 April when the employment relationship ended, the Court layoffs They applied the phenomenon not prescriptive. In addition, the article cited in the charge refers to the liquidation of and not at checkout.
"This is consistent with sustained by this Court:
"And there was a change because the concept of" duty "is viewed from the perspective of the debtor, it is clear from the transcript regulation, which in this new scheme of unemployment benefit; the enforceability of that comes from the February 15 following the year in which settlement is made, which in turn is short for that annuity, in addition, if the employer fails to comply with that obligation, incurs a penalty moratorium. These circumstances allow and enforce the Board argued that any dispute concerning the terms under which the employer who is obliged to quantify the respective year that social security benefits should be raised from the above date, the day of that month 14 is the limit it has to deposit the full amount of the unemployment fund chosen by the worker and not incur the penalty noted. Punishment is justified because there is an obligation to his office and has not been met on time. "(Rad. 8202 - 19 February 1,997).
"Finally, note the censor, that applying the statute of limitations would be rewarding the employer failed and also because there is a penalty for paying a day's pay for each day of delay.
"In this regard, it is appropriate use Article 65 of the CS of T., which establishes the compensation for non-payment upon termination of employment contract, wages and benefits due, consisting of a sum equal to the last daily wage for each day of delay. Based on the foregoing, no one could say that the right to those wages and benefits does not prescribe canceled, considering that they are operating so-called "wages." On the contrary, it is clear that the phenomenon of the prescription is fully applicable from time when every duty was payable.
"In short, as the actor had embraced the new system of unemployment, ie annual settlement and allocation by 15 February next year, his duty was payable as of that date for each respective annuity, and as the demand was filed on May 15, 1995, the Court did not err when he requirement applied to layoffs caused by 16 May 1992. "
So, showing the appellant's legal blunder by this Court and will marry the contested decision did not state as proven the exception of limitations of the unemployment caused between the years 1996 to 2000.
3. Settlement of the survivor pension: The reason comes
censorship in both the Court to prohijar the liquidation of the provision of yore committed the error mentioned, it certainly glared support conviction that within the year preceding the death of Mr. Ceballos Londoño, the defendant was not insured the general pension system, which inevitably entailed until I was in charge of the board as said the majority of this Chamber of the Court and, therefore, its clearance should be in accordance with the provisions of Article 48 of Law 100 1993 which provides that the survivor pension will be equal to 45% of the revenue settlement basis, increased by 2% of the income for each additional 50 weeks to the first 500, not exceeding 75%.
Indeed, the court of second degree in endorsing the consideration of A-quo on this issue, took $ 633,441, oo as the base salary settlement amount by applying 75% showed an initial amount of $ 475,081, oo monthly From November 1, 2004, which of course is a mistake, because in accordance with the standard reported the initial amount of that pension was equivalent to 45% of the revenue settlement basis, the percentage increased in the terms provided for in Article 48 ibid, whether it be in order.
So, will marry the wrong decision regarding the amount of pension survivors.
4. Resetting the survivor pension.
also committed the mistake the Court, as to uphold the decision of a quo found that the survivor pension would be increased each January first, according to the variation of the monthly minimum wage or as determined by subsequent legislation (Folio 311), however it is a pension above the minimum wage and that Article 14 of Law 100 accused of direct infringement, provides that such pension shall be adjusted annually based on the consumer price index.
therefore will also marry statement regarding the realignment ordered by the Court, for, in place of analysis, establish the terms that fit the amount of the pension to which the applicant is entitled.
5. Provision of work shoes and clothing.
While it is true that according to the discretion of the Chamber is not feasible to host such a claim because the purpose of the provision is that the worker used in the work contract, and is not provided the mechanism of compensation in money on the contrary, the legislator expressly prohibited and strict in Article 234 of the Labor Code, so is that it does not mean that the employer has breached the provision of effective allocation of the employment relationship to the termination of this obligation to redeem himself, as his compensation would be going to the general rules on breach of the obligations agreed, in which case proceed to pay compensation damages, and as such compensation is not tariffed, they need to be credited in each case.
This was said in the statement of April 13, 1999, establishment No. 11014:
"In this hypothesis is to apply the general rule that takes place in contract for breach of the agreement, under which the generates the right to compensation of damages by the party responsible for the affected. As such compensation is not lawfully tariffed must be credited in each case and it is clear that you can include the amount of money for the endowment and any other harm that comes to show. "
It follows It follows that in any mistake committed by the Court in upholding the sentence imposed by the court, relating to the payment of said compensation for damages for breach of the obligation in the delivery of work shoes and dress, especially since it was supported with evidence expert.
corollary of the above, partially marry Case ad quem.
VII. INSTANCE JUDGEMENT
Looking to the settlement of the unemployment benefit, more than that on appeal, it is pertinent to note that the court, however, that finished him wrongly, as it did under Article 249 of the Labor Code , ie, applying the traditional rules without regard to the deceased went to work for the respondent after the entry into force of Act 50 of 1990, also, incorrectly, took a salary higher than that shown gave From December 2000 until the date of death of that occurred in January 2003, monthly amount of $ 384,000, oo, according to realize it poured Exhibit folios 95, 96, and 171 to 222.
However, as was seen at the appeal, the unemployment benefit and accrued interest from back in 2000 are required and so declare it, because the requirement was only interrupted by the filing of the application, which occurred on April 20, 2004 (Folio 13), why is intended to cover for the years 2001 and beyond, and taking into account that according to documentary evidence and 175 pages following these annuities set a monthly salary of $ 384,000, oo, then this which serves as support for the respective settlement.
In this vein will be condemned to pay the defendant for the foregoing, the following sums:
Year Interest Relief of unemployment layoffs. Penalty for late payment TOTAL
2001 $ 384,000, oo $ 46,080 oo $ 46,080 oo $ 476,160, oo
2002 $ 384,000, oo $ 46,080 oo $ 46,080 oo $ 476,160, oo
$ 2,003 6,400, oo $ 13, oo-o-$ 6413, oo
TOTAL $ 774,440 , oo $ 92,173 oo $ 92,160, $ 958,733 oo, oo
In point to the settlement of the initial allowance for the survivor pension, as was concluded on appeal, instance the judges erred in the settlement of the same, since in accordance with Articles 21 and 48 of Act 100 of 1993, this amount corresponds to 45% of the revenue settlement basis plus 2% of that income for every fifty weeks addition to the first five hundred, but not exceeding 75%, but as the cause not served during this period, this means it will be 45% of the salary earned during the time served, updated annually based on the index variation consumer prices.
Given that the ends of the employment relationship were demonstrated in the process from the October 7, 1996 and January 6, 2003, and in accordance with the wages that are credited to each annuity at pages 70, 76, 82, 88 to 96 and 173 to 222, the base income payment due date each annuity is the sum of $ 520,138, oo, of which 45% yields the amount of $ 234,062, oo, the counter would start from November 1, 2004, when it established a quo and was not subject to dispute by the parties.
However, inasmuch as that figure is less than the monthly minimum wage in effect for the year 2004, the pension amount to $ 358,000, oo a month, as mandated by Articles 35 and 48 of Act 100 of 1993 , thus leaving the court modified the sentence.
free in the special appeal given the prosperity part of the claim on appeal. Nor are imposed by the second instance. The first of the confirmed.
In consideration of the foregoing, the Court of Justice, Labor Cassation, to administer justice on behalf of the Republic and by authority of law, CASA Case PARTLY Superior Court Judicial District of Antioquia, Labor Division, dated January 17, 2005, issued in the ordinary process that promoted labor RENEIRA RIVERS OF JESUS \u200b\u200bORTIZ, in his own behalf and on behalf of their minor daughters Catherine and VALERIA CEBALLOS RIOS, against Coffee Cooperative OF SALGAR LTDA. COOCAFISA LTDA., As confirmed numerals, second, third and fourth court ruling, which declared proven by the prescription of all rights claimed from April 30, 2001 back, ordered the defendant to acknowledge and pay $ 3'070 .429, oo and $ 126,687, oo on account of severance and interest to them, the survivor pension in the amount of $ 475,081, oo per month from the first (1st) of November 2004, $ 11'877 .025, oo by way of allowances arrears.
instance in place of the numerals referred to modify the sentence of the first to declare instead proved the exception of limitation on labor rights claimed subject to the same from the 20 April 2001 back, with the exception of the unemployment benefit, which declaration operates from the year 2000, inclusive. Is condemned to the Cooperative defendant to acknowledge and pay the plaintiff for a survivor's pension in the amount of $ 358,000, oo a month, from November 1, 2004, which will be adjusted in accordance with legal mandates. 50% of the pension is paid to RENEIRA DE JESUS \u200b\u200bORTIZ RIOS and the remaining 50% equally, and Valeria Caterina CEBALLOS RIVERS, on the terms and conditions set forth in Article 47 of Law 100 of 1993.
Orders the defendant to recognize and pay the applicants monies as listed below, the following:
1. Unemployment Assistance ... ... ... ... ... .... ... .... $ 774,440, oo
2. Interest ... ... ... ... ... .... ... ... ... ... ... ... .. $ 92,173, oo
3. Penalty for late payment ... ... .. $ 92,160, oo
4. Allowances arrears due from November 1, 2004 and August 2006 ... $ 10'087 .000, oo, distributed as follows: 50% for RENEIRA RIOS JESUS \u200b\u200bORTIZ and the remaining 50% equally to the other applicants.
else confirm in Case first grade.
No costs on appeal or the appeal. The first of the confirmed.
CÓPIESE, NOTIFIED, PUBLISHED AND RETURN THE FILE TO THE COURT OF ORIGIN.
Gustavo Jose Gnecco Mendoza
NADER ISAAC CARLOS EDUARDO LOPEZ VILLEGAS
OSORIO LUIS JAVIER LOPEZ FRANCISCO JAVIER GÓMEZ RICAURTE
CAMILO
VARGAS DIAZ GALLEGO TARQUIN ISAURA
Ismenia GARCIA MARIA MENDOZA Secretary
0 comments:
Post a Comment