SUPREME COURT APPEAL BOARD OF LABOR
Magistrate VILLEGAS EDUARDO LÓPEZ
Reference: File No.23794
Act No. 81
Bogotá, DC, twelve (12) October, two thousand four (2004).
Solve the Court appeal brought by the attorney of PEDRO PABLO RODRIGUEZ CASTILLO, against the decision dated 12 December 2003 handed by the Labour Division of the Superior Court Judicial District of Bogotá, in the ordinary labor process promoted by the appellant against society TRUCK OWNERS SA "PROCAM SA
I
. BACKGROUND
The actor said that company sued to be recognized and paid, as interest to appeal the dismissal, the interest to pay, the penalty for non-payment of such interest, premiums service, compensation for vacation value, compensation moratorium and the costs of prosecution.
In support of his claim stated that he served to the defendant company from 1 March 1988 until 10 April 1995, when he presented a protocol resignation of General Manager Cargo courtesy to members of the Board. His total salary over the last year of services, including basic and fees averaged $ 3'100 000.00 a month, but the payment of social benefits not taken into account the real average wage or the actual end of employment contracts .
The defendant company has only accepted as true the position held and the payment of social benefits, the others refused or said they did not record, opposed the petitions for lack of legal basis and the exceptions proposed in bad faith of the applicant lack of demand obligations, improper application of legal standards that support the claims of the lawsuit, lack of enforcement of legal rules are not applicable to the case, the defendant's compliance with its obligations if they existed, all prescription right born with three or more years prior to the date of the notice of claim to the defendant, payment of all obligations demanded compensation, and the existence of a contract for the provision of services, payment of fees from June 1 in 1988 to 31 March 1989.
By ruling of 30 April 2003 the Labour Fourth Circuit Court of Bogotá decided:
"FIRST: to condemn the company TRUCK OWNERS CORPORATION-SA-PROCAM legally represented by Dr. MONICA DEL PILAR RODRIGUEZ VILLOTA or who replace or in lieu thereof to pay Mr. PEDRO PABLO RODRIGUEZ CASTILLO sums of money the following:
1.1 The concept of adjustment of the unemployment benefit amount of $ 16'416 .595 McTeer.
1.2 The concept of adjustment of interest on the severance amount of $ 1'083 .495.27 McTeer.
1.3 By adjustment of the premium services amount of $ 161.557.oo McTeer.
1.4 The adjustment of a cash payment of the rental amount of $ 1'508 .411. Oo McTeer and
1.5 The penalty for the total unpaid wages and social benefits accrued to the plaintiff the sum of former employees $ 119,426.00 McTeer, from April 10, 1995 and thereafter until canceled all wage claims referred.
SECOND: acquit the defendant of the other pleas in demand.
THREE: Declare tested in pertinent part payment exceptions and good faith. "(Pages 681 and 682 of the main book).
II. JUDGEMENT OF THE COURT
Unleashing the appeal brought by the attorney for the defendant, Superior Court Judicial District of Bogotá, in a ruling dated December 12, 2003, resolved:
"FIRST: MODIFY the sentence by way of contrast Holiday compensation court imposed the defendant, who is in the amount of $ 1'729 345.11, as indicated in the relevant part of this provided.
SECOND: reset overturned the convictions of severance, the severance pay interest, premium services and compensation moratorium it had imposed on the defendant appealed the ruling in court, and confirmed in all other respects, as was indicated in the relevant part of this provided .- "(page 717 of the main book).
considered, the Court, in the interest of the appeal, that attention to the transfer of severance arrangements by the annualized settlement actor provided under Article 99 of Act 50 of 1990, and after reviewing the appropriations from the year of 1992, as earlier were sheltered by phenomenon discontinuance of the action for recognition, the difference in unemployment in the amount of $ 4'410 490.62 was covered by the judicial appropriation by the defendant in this process in the amount of $ 5'096 689.00. With regard to the interests of unemployment was a difference in the amount of $ 548,221.81, which is offset by the balance was in favor of the defendant in the recalculation of unemployment the amount of $ 686,198.38.
adjustment in relation to premium services, obtained a difference of $ 88,888.88 as a result of the inclusion of average commissions, amount to offset the balance in favor of the defendant of $ 137,967.57, after having subtracted from as disclosed by the defendant the difference by way of unemployment benefit and interests of layoffs. The sentence on account of rental compensation difference in attention to the set average rental in the amount of $ 1'729 345.11.
Finally, he noted, that the compensation moratorium is not self-executing, and considering that the applicant was who finished unilaterally the contract work, as manager was the one who ordered the payment of wages to workers and his own, and that the defendant was ordered to pay only values \u200b\u200bthat do not generate this compensation and also settled and paid PERFORMANCE differences through legal title once defunct employment contract, concluded that the sentence was not appropriate for this item.
III. CLAIM OF APPEAL
Unhappy with the previous determination, the applicant filed an appeal with the following contents:
"SCOPE OF THE CHALLENGE
aspire to marry the sentence appeal reversed as the failure of First Instance acquitted of readjustment pay, of the Severance Interest and Penalty for non-payment, as well as Premium Service and Compensation Moratorium. For
Compensatory Value of Homes, to marry only partially. I ask the
H. SUPREME COURT-CARTE Labor Cassation Chamber to marry after the verdict, based on subsequent analysis, modify the ad-quo (sic) and issued a ruling that ordered the following sentences:
1. On the concept of Unemployment the $ 17'445 .886.11, deduction of $ 1'402 .500 as outlined in the sustainability of the resources of height.
2. On the concept of Premium Service is legally required.
3. Interest on the Unemployment and non-payment penalty which appears proven.
4. For compensatory value of $ 2'553 .520.06 Vacation, modifying the decision made by the ad-quo.
5. Confirming the sentence of the first in everything else.
operating subsidiary, to order the cessation of employment, the Unemployment Interest and penalty for non-payment, as well as Premium Service, Value Compensatory Compensation for Holidays and the Moratorium, in Surna appropriate for each case , according to the results of this resource and what appears proven.
Regarding costs, it is resolved in terms legally appropriate.
CAUSAL OR CAUSE OF APPEAL
invoke the causal is the first of those enshrined in Article 60 of Decree 528 of 1964 and Article 7 of Law 16 of 1969. COUNT
The statement accused violated indirectly by misuse, Arts. 98 and 99 of Law 50/90, Arts. 11, 20 and 30 Dec. 1176, 1991, in conjunction with the Arts. 443, 186 to 192, 249, 306 and 488 of C ST, and the Arts. 114 of Law 100/93, Arts. 1625 and 1626, 1714, 1740, 1741 of the CC and the Arts. 10, 2 and 3 of Act 52 of 1975. And half the Arts rules 151 of the CPL and the Arts. 90 and 306 of C. P C. In
violation of the above rules made by the Court for wrongly assessed and tests have failed to appreciate others. ERRORS
findings of fact are obvious errors of fact:
1. To consider demonstrated beyond be, that the respondent met the legal requirements to transfer to the new regime the dismissal of my principal.
2. Do not assume shown, being evident in the move to the new regime Layoffs to try with my client, were omitted several legal requirements, without having met the requirements for such transfer.
3. To consider demonstrated without being so that the communication of folio 642 results confirm that my client is move to the new regime.
4. To consider proved, without being certain, that when operated the alleged change of regime, the Company made the final settlement of this provision.
5. To consider proved, without being certain that the defendant promptly consign the value of the final dismissal was for the time of the alleged change of regime.
6. To consider proved, without being certain, that in developing the Employment Agreement, the parties had interpreted the law as a change of regime. "(Pages 7, 8 and 9 of the book of the Court).
The show argues that to qualify under the new system of unemployment must meet the following steps or requirements: written communication of the worker the employer stating the date from which welcomes the new scheme, the employer must proceed to final settlement of the unemployment benefit with their legal interests, that value must be entered before 15 February next year at the bottom of severance pay that the employee chooses and 31 December each year the employer must continue paying off the final value of unemployment and record it within the deadline. Clarifies that in this case these requirements were not met, since the documents appearing at pages 642, 234, 695 and 696, 200 and 700 do not record the date on which The actor was welcomed to the new system. He adds that those documents do not show that the company had made the final settlement of the unemployment benefit, along with their legal interests. In addition, the company also recorded the final layoff caused from 1 March 1988 to 31 December 1991, the Court held required. With the documents 362 to 385 pages demonstrates the basic salary of 1,991 a year and with the certificate of folio 700 is shown that only recorded a partial value of unemployment, when what should have been done was the final entry of the dismissal . Pages of documents 76, 78, 79, 81 and 82 shows the real average wage in the year of 1,991. Based on the foregoing, concludes that it is true that there was regime change in unemployment or this was irregular.
The opposition, submitted a brief out of time.
IV. The Court's
It is obvious that errors of fact which is saddled with the Tribunal, including legal aspects, such as requirements to move to the new system of unemployment, which contradicts the art of the extraordinary appeal.
Although this would be sufficient to reject the charge, we proceed to study.
The central concept is that the attack was not complied with legal requirements for the worker to change its system of unemployment.
is true that the collegiate court concluded that the transfer had been made when, in his providence appropriated about "... when he says that the actor moved to (sic) and that is hardly borne out with documentary folio 642 that realizes the decision of the actor that their dismissals were transferred to a fund "Colpatria" and interpreted it in the development of the employment relationship, as it appears on pages 234 and accepted by the applicant when the written pages 695 and 696 of the dossier claims that the layoffs of 91 to 94 years were recorded in the background Horizon, as stated in the certificate of folio 200 of the record.
So then, that before the transfer of the severance scheme actor ... "(pages 709 and 710).
Take the contents of the documents cited by the judge ad quem:
1 -. The folio of 642. This is a communication from the actor to the respondent dated 30 January 1992, where he claims that his severance be transferred to the Corporation Colpatria, which is exactly what the Court said, and from which it follows logically that Mr. Castillo Rodriguez had moved to the new system of unemployment, and therefore can not say, as does the appellant that fails to comply with legal requirements by not indicating the date on which it welcomes, because it could be understood from the date of communication, without thereby incurring error is obvious.
2 -. The folio of 234. Contains an estimate of severance called partial settlement of severance for all time worked, and which discriminates against those caused by the year 1994, until September 30, worth $ 675,000, oo, plus interest of $ 60,750, and a item that is designated as "withdraw Colpatria value, amounting to $ 1,600,000.00. The Court is right when he concluded that the actor requested transfer of his severance to a severance fund, it should be understood that caused prior to the year 1994, the year that just passed, was entered in a fund of this nature.
3 -. On the pages 695 and 696. This is a memorial signed by the agent of the applicant and addressed to the Board work of the Superior Court of Bogota, where he flatly said "As for severance set forth in HORIZONTE, it must be for the years 1991 to 1994 is a provision was $ 1 '402 .500, oo, according to the Certificate of the Fund to present. "(page 696). This coincides exactly with what was said by the Tribunal. It is true that in the next line says that these allocations are not settled with the real wage (Basic and commissions), but that does not contradict the fact of change to the new system of unemployment. Moreover, the point of severance pay to settle the subject of another of the charges.
4 -. The folio 200. He attends to censure reason in that it is really is the folio 700. Horizon communication contains Pensions and Severance addressed to Dr. Jesús María Vega Muñoz, detailing the contributions made by the company Procam SA on behalf of Mr. Pedro Pablo Castillo Rodriguez from February 1992 until June 1995. The Board did not find any contradiction between that certificate and the statement by the Court in this regard.
the foregoing, no incurred by the Tribunal in the failures blamed, and charge accordingly fails.
"Count Two charged
The sentence violates directly, misapplication, numerals 1 and 3 of Art.99 of the Law 50/90, in relation to Art.98 of the Law, with Arts. 110, 2 and Dec. 3 of 1176/91, the CST 249 and 1740 of CC "(page 14 of notebook Court). The demonstration
cargo holds that if the Court accepts that the Employer failed to record all of the severance for the years from 1,992 to 1,995, which paid by appropriation in this trial, you have not met with the obligation to liquidate the 31 December each year, and thus violated the rule so ordered, ie final settlement of unemployment and record it before 15 February next year.
V. The Court's
The attack is based essentially on the Court to establish that the layoffs were not settled in full, not including sales commissions for each period, and have concluded that these differences were covered with judicial appropriation made in this process by the defendant, improperly applied the numerals 1 and 3 of Article 99 of Law 50 of 1,990, which order do final settlement of severance each December 31 and record it before 15 February next year.
has understood the Board that the abuse occurs when the accused standard applies to a case not covered by it or made to produce an effect that corresponds to the case discussed, which does not occur in the sub lite as those applied by the Court are relevant. Which raises the appellant is based on factual aspects, such as determining the actual amount of severance for each year, other than the route chosen and therefore the charge is dismissed.
"COUNT THREE
The appeal ruling violates indirectly, by misuse of Arts 249, and 488 C ST, under Arts. 98 and 99 of Act 50/90 and the Arts 1, 2 and 3 of the Dec. 1176/91 as half standards Arts. 151 of the CPL and 90 of the CPC
In violation of the law I'm pointing out, the court erred by wrongly assessed some tests and failed to appreciate others.
OBVIOUS ERRORS OF FACT
shown
Dar by, without being certain that the unemployment caused prior to May 16, 1992, prescribed. Do not assume
shown, it was evident that the time limitation of layoffs caused prior to May 16, 1992, including that caused the December 31, 1991, was not fulfilled. "(Page Notebook 16 of the Court).
The demonstration of charge states that as the employment contract expired on 6 April 1995, the lawsuit was filed when there were only after 1 month and 10 days and being the statute of limitations of three years, the Court was wrong when This phenomenon was applied to the rights due prior to May 16, 1992.
"COUNT FOUR
The statement accused directly violates misinterpretation ordinals 1 and 3 of Article 99 of Law 50/90, the Art.2 second paragraph of Art.311 and Decree 1176/91, paragraph 1 of article 3 of the same statute, in relation to Arts. 249 and 488 of the CST and a half rules the Arts. 151 of the CPL and 90 of the CPC "(page 18 of the notebook of the Court). Reiterates
approaches of the previous charge, in that the date for demanding the dismissal is the termination of the employment contract, and not as understood by the Court that each separate obligation annuity is becoming payable from 15 February of the year following its accrual. Clarifies that the law that provides for an employer who fails timely slogan unemployment is a penalty moratorium and no prescription, which would reward him.
VI. The Court's
In response to that third and fourth positions refer to the phenomenon of limitation applicable to the Board consideration and decision d together.
Although the third charge made by the indirect route and it gave the Court two alleged errors of fact, actually the point at issue is to determine from where does the unemployment benefit payable under the scheme set in Act 50 of 1,990, and therefore from that date starts the statute of limitations of that right, the issue is unquestionably legal.
It should be noted that from the force of Law 50 of 1,990 in Colombia in relation to unemployment benefit there are two (2) systems different settlement mutually exclusive:
a) The traditional system governed by Articles 249 and following of the Labor Code, with settlement to terminate the employment contract.
b) The annual final settlement system and sent to the unemployment funds, created by Act 50 of 1,990.
In this case, the Court took for granted and agreed to by the appellant, in making the fourth position by the direct route, the actor filed for new unemployment scheme is that the provisions of Act 50 of 1,990.
Therefore, the rules governing the form and timing of payment of the unemployment of applicant are those of the said Act 50 of 1990, whose relevant articles are as follows:
"Article 99 .- The new special of the unemployment benefit, will have the following characteristics:
1. On 31 December each year will be the final settlement of severance, by the annuity or the corresponding fraction, without prejudice to be performed on a different date for the termination of the employment contract.
2. ...
3. The value paid by way of dismissal be entered before February 15 next year, individual account in the name of the worker in the unemployment fund of his choice. An employer who fails to comply with the prescribed period shall pay a day's pay for each day of delay. "
It 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, the date from which it becomes 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 support the unemployment is due at the end of the contract.
is true that paragraph of Article 3 states that "The closure of the unemployment benefit dealt with in this article shall be as provided in Articles 249 and following of the Labor Code."
Y the liquidation of unemployment, under Article 249 of the Labor Code, is a month's salary for each year of service and proportionately for fractions of a year.
is also true that in that article was ordered to pay the severance pay to terminate the employment contract, but the beginning was of these considerations, the Code is the 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 both had to settle his case and record annually 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, layoffs that the Court will apply the prescriptive phenomenon. In addition, the article cited in the charge refers to the liquidation of and not when to pay.
This is consistent with the statements of 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 regime of the unemployment, 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, it incurs penalty moratorium. These circumstances allow and enforce the Board argued that any dispute concerning the terms under which the employer which is bound, quantified for the respective years 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 scored. 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 to invoke 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 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.
short, as the actor had embraced the new system of unemployment, ie, the annual clearance and consignment before February 15 next year, his duty was payable as of that date for each respective annuity, as the lawsuit was filed on 15 May 1995, he was right when the Court applied the requirement to layoffs caused by 16 May 1992.
third and fourth charges are unsuccessful.
"FIVE CHARGE
The appeal ruling violates indirectly, by misuse of Arts, 98 and 99 of Law 50/90, Arts. 11, 21 and 31 of Dec.1176/91 in conjunction with the Arts. 186 to 192, 249 and 306 of S, T, and the Arts. 1625, 1626, 1714, CC 1715 and 1716 of
In violation of the rules stated above, the Court committed couple wrongly assessed and tests have failed to appreciate others. ERRORS
findings of fact are obvious errors of fact:
1 - Give pair shown, without being certain that the amount paid to my client for commissions in 1992 was $ 8'600 .937. Oo, when the truth is that that value was $ 9'868, 588.oo. Accordingly, the Court affirms the dismissal, according to the commission, during the year was $ 716.744.75, when it is shown that the value of the severance pay was $ 822.382.33.
2. To consider proved, without being certain that the value of committees in 1993 was $ 17'728 .603. oo, when in fact that value was $ 20'010 .196. oo. The Court accordingly concludes that unemployment, depending on commissions during the year was $ 1'477 .383.58, when it is shown that the value of the Severance is $ 1'667 .51 G.33.
3. Give, shown without being certain that the value of committees in 1994 was $ 25'529 .681. Oo, when in fact that value was $ 27'157 .357. Accordingly the Court says that the Severance, depending on commissions during the year was $ 2'127 .473.41, when it is shown that the value of the Severance Pay is $ 2'263 .113.08.
4. To consider proved, without being certain that the value of the commissions 1995 was of $ 4'000 .000. oo, when in fact that value was $ 10'607 .795. oo. Accordingly, the Court holds that the Severance, depending on commissions during the year was $ 88.888.88, when the truth is that the value of that Severance is $ 883.982.91.
5. To consider proved, without being certain that the value of the interest on Unemployment and legal sanction for the years 1992, 1993, 1994 and 1995 was $ 548.221.81, when what is credited is that the sum of those interests is $ 1'352 .878.80.
6. To consider proved, without being certain that the amount appropriated by Severance is superior to what the defendant was appropriate, when the truth is that this sum is significantly lower.
7. To consider proved, without being certain that the amount appropriated premium service is superior to what the defendant was appropriate for this concept, when the truth is that this sum is much lower.
8. To consider proved, without being certain that the amount appropriated to pay Layoffs, layoffs Interest and Premium Service, resulted in favor of the defendant a balance of $ 824.174.95, to be deducted from the $ 2'553 .520.06 of Vacation, by way of compensation.
8A. Shown not to declare them and is that the amounts appropriated to pay the concepts referred to the sentence did not even cover the value of Layoffs, Unemployment And Interest to Premium Service that be less could be offset by compensatory value for a vacation. "(pages 20 and 21 of the notebook of the Court).
Based on the documents mentioned in the job as poorly appreciated or not appreciated by the Court held that the commissions taken into account in the decision under attack is not the actor actually accrued, and therefore the amounts appropriated by the concept of unemployment interest on severance pay and premiums do not correspond to what is legally due.
VII. The Court's
Acierta the appellant as to the repairs that it makes the Court in relation to documents that are visible to pages 41 of Annex 2, pages 24, 84, 85, 95, 115, 117, 125, 133 and 135 of the main notebook terms of commissions earned by the plaintiff, for purposes of determining the unemployment benefit.
Indeed commissions to settle for the year of 1992 the Court took into account the documents appear to pages 3, 28, 41 Annex No.2 notebook and pages 87, 89 and 91 of the main file, which will gave a total of $ 8'600 .937, oo, for a monthly average of $ 716,744.75.
Take the contents of these documents:
1 -. Folio 3: Proof of discharge No. 39482. Adjustment of rates for the months July - August - September 1992 1'500 worth $ 000.00. Paid on 24 September 1992.
2 -. Folio 28: Proof of discharge No. 42350. Adjustment of rates for July to September 1992 totaling $ 958,829.00. Paid on 18 December 1992.
3 -. Folio 41: Proof of discharge No. 43898. Adjustment of rates for October to December 1992 for $ 000.00 1'500. Paid on February 16, 1993.
4 -. Folio 87: Proof of discharge No. 35122. Adjustment of rates for January to February of 1992 for $ 299.00 1'980. Paid on 11 May 1992.
5 -. Folio 89: Proof of discharge No. 37198. Adjustment of rates for April-May and June 1992 for $ 000.00 1'000. Paid on 1 July 1992.
6 -. Folio 91: Proof of discharge No. 38710. Adjustment of rates for April-May and June 1992 for $ 809.00 1'661. Seal appears not paid, but at the top consists in August 1928.
For its part, the appellant takes into account the documents at pages 41 of Annex 2, as it corresponds to poorly priced commissions paid on 16 February 1993, and not appreciated as those of folios 84, 85 and 95 main notebook. Let
its contents:
1 -. Folio 41: Proof of discharge No. 43898. Adjustment of rates for October to December 1992, worth $ 1'500 000.00. Paid on February 16, 1993.
2 -. Folio 84: Proof of discharge No. 32154. Adjustment of rates for November and December 1991 totaling $ 714,842.00. Paid on 2 March 1,992.
3 -. Folio 85: Proof of discharge No. 32164. Adjustment of rates for January to March 1992 for $ 000.00 1'000. Paid on 2 March 1992.
4 -. Folio 95: Proof of discharge No. 41048. Adjustment of rates for July to September, does not appear the year, worth $ 1'083 .211. Paid on 20 November 1992.
is true that the payment recorded in the folio 41 of Annex 2 was made on 16 February 1993, but those fees correspond to the months of October to December 1992. The folio of 84 to the months of November and December 1991 that according to the filing of the claim had prescribed and the folio of 95 years does not appear to correspond, but appears paid stamp on 20 November 1992. Therefore the commission actually shown in the process are: 1 -.
Folio 3: $ 1'500 000.00
2 -. Folio 28: $ 958,829.00
3 -. Folio 41: $ 000.00 1'500
4 -. Folio 85: $ 000.00 1'000
5 -. Folio 87: $ 1'980
299.00 6 -. Folio 89: $ 000.00 1'000
7 -. Folio 91: $ 809.00 1'661
8 -. Folio 95: $ 1'083 10'684 ...........$ 211.00 148.00 Total
and monthly average of $ 890.345.66
To pay commissions for the year of 1993 the Court took into account certificates of pages 101, 103, 105, 107, 109, 111 and 113 main notebook, giving him a total of $ 603.00 17'728 1'477 for an average of 383.58.
The appellant said that was not found proof of folio 115, observed ill the proof of folio 41 of Annex 2.
The folio 41 of Annex 2, even when paid in February 1993 was for commissions from October to December 1992, and therefore there were received within that year, ie 1.992.
As for the sheet 115, is a question of commissions for the months of October to December 1993 for $ 000.00 and paid 1'500 December 30, 1993. Consequently, the commissions for the year of 1993 were:
1 -. Page 101: $ 593.00 2'855
2 -. Folio 103: $ 000.00 1'500
3 -. Folio 105: $ 796.00 2'746
4 -. Folio 107: $ 906.00 3'688
5 -. Folio 109: $ 1'500
000.00 6 -. Folio 111: $ 901.00 3'218
7 -. Folio 113: $ 000.00 1'500
8 -. Folio 115: $ 000.00 1'500
9 -. Folio 117: $ 2'074 20'584 ...........$ 744.00 940.00 Total
and monthly average of $ 1'715 411.60
To pay commissions for the year of 1994 the Court relied on documents that appear on pages 119, 121, 123, 125, 127, 129, 131, 133 and 135 for a monthly average of $ 2'127 473.41.
The appellant notes that the court failed to add the folio 125, folios badly assessed 133 and 135 because they were paid in the year of 1,995 and failed to appreciate the folio 117.
Acierta in that it did not join the value entered in the folio 125 and was allowed to appreciate the folio 117, but the value entered in the receipt No. 56970-1 must be added to the received in the year of 1,993, that payment for the value of the difference in fees from October to December 1993. In relation to pages 133 and 135 is true that they were paid in the month of March 1995 but corresponded to commissions for the months of September to December 1994. Therefore
commissions for the year of 1,994 were
1 -. Folio 119: $ 000.00 1'500
2 -. Folio 121: $ 2.000 3 -.
000.00 Folio 123: $ 000.00
2.000 4 -. Folio 125: $ 123.00 2'040
5 -. Folio 127: $ 3'000
000.00 6 -. Folio 129: $ 100.00 4'241
7 -. Folio 131: $ 716.00 6'837
8 -. Folio 133: $ 000.00 4'000
9 -. Folio 135: $ 1'950 27'569 ............$ 865.00
Total 804.00 483.60 monthly average $ 2'297.
fees To pay period 1 January to 10 April 1995, the Court took as a value of $ 4'000 000.00 for a monthly average of $ 333,333.33 and a difference in favor of the actor for that fraction of $ 88,888.88.
He states that the Court found badly visible proof folios 133 and 135 and failed to appreciate the provision that appears at page 24.
As documents of the pages 133 and 135 and stated that despite having been paid in March of 1995, commissions accounted for the months of September to December 1994 and therefore did not err the Court to include them in commissions for the year of 1,994.
is true that in the folio 24 has an adjustment of fees in the amount of $ 656,930, but does not appear to corresponding period.
In conclusion severance differences are:
1992: $ 890,345.66
1,993 $ 1,994
411.60 1'715 $ 2'297
483.00 1995: $ 88.888.88
Total ... $ 4'992 .129, 60 lesser amount as disclosed by the company on this account it was $ 5'096 689 (page 24).
the Court to settle the interests of unemployment obtained the sum of $ 548,221.81. With the data recorded by the Chamber are based instance $ 599,055.48, plus an equal amount by way of penalty for late payment, a total of $ 1'198 110.90.
the appellant submits that the Tribunal failed to appreciate the documents which consist of commissions received by the actor in the year of 1,991, and it did because it considered that this period had expired, an aspect that shares this room.
For the years 1992, 1993, 1994 and 1995 and the Corporation made the study of relevant documents in the preceding paragraphs.
premiums in relation to service the Court reached the following figures:
1 -. 1992: $ 716,744.75, because the company had repaid the sum of $ 320,000 (pages 352 and 339).
2 -. 1993: $ 1'477 383.58, considering that the respondent company paid $ 700,000.00 (pages 327 and 315).
3 -. 1994: 2'127 $ 473.41, which is the difference from the $ 900,000.00 it paid the company (pages 296 and 270 A).
4 -. 1995: $ 88,888.88, in consideration of which had already been repaid the sum of $ 24,000.00 (folio414). Based on the foregoing was a total of $ 4'410 490.62.
The appellant relies on the same documents mentioned in relation to unemployment benefit, which to be considered by the Board totaled $ 4'992 129.60 less than the amount appropriated by the company by way of semi-raw $ 5 '096 689.00 (page 24).
For these reasons the charge would be prosperous, but as to act in place of the request would lead to the same conclusion, as demonstrated by the study of documents and the respective operations, the charge fails.
"SIXTH CHARGE
The statement accused violated indirectly by the misapplication of Section 65 C. S_T., In conjunction with the Arts. 249 of the CST and the Arts. 98 and 99 of Act 50/90 and the Arts. 10, 2 and 3 of 1176/91 Dec. likewise the Arts. 1625, 1626, 1714, 1715 and 1716 of CC
In violation of Articles I'm pointing made by the Court for failing to appreciate some tests and others wrongly assessed.
OBVIOUS ERRORS OF FACT
are obvious errors of fact:
1) To consider proved, but it's not that the fact that my client ended the contract of Labor certifies the absence of malice or improper conduct of the defendant. "
2) Dar by proven, but it's not that the presumption of Article 65 of the CST is impoverished because they were my client functions and were under his charge, the management of "working credits" and also "who provided the management payment of wages of workers of both the defendant and of his own. "
3) To consider proved, not being true, that Article 65 of the CST is not applicable to the case because the defendant in this process was only responsible for payment of "values" that essentially do not generate such compensation, when the truth is still to be Grants and Unemployment,
4) To consider proved, without being certain, that Article 65 of the CST is not applicable to case because the defendant pay the difference PERFORMANCE rnediante legal title, when the truth is that this provision did not cover the value still owed by Premiums and Severance.
5) To consider proved, but it's not that the presumption of bad faith which enshrines the Art, 65 of the CST is impoverished as stated by the applicant in the completion memorial folio 662, when the legal truth is that this assumption is predicated not on the worker but the employer. "(pages 25 and 26 of the notebook of the Court).
In the demonstration by holding that the presumption of bad faith enshrined in Article 65 of the CS of T. referred to the employer and therefore can not be derived from the worker's decision to terminate the employment contract.
specifies, that within the functions of the Manager does not appear to order the payment of wages, including yours, as the treasurer was the custodian of monetary values \u200b\u200band titles that represent them.
The company did not pay in full the service severance and bonuses, as is clear from the evidence is not appreciated or poorly estimated generated compensation moratorium.
"SEVEN CHARGED
The sentence violates charged directly for misinterpretation, Article 65 CST in relation to Arts. 249 of the Code, Arts. 96 and 99 of Act 50/90 and the Arts 1, 2 and 3 of the Dec. 1176/91; horn and the Arts. CC 1516 and paragraphs 2 and 3 of Section 66 of the same work. "(Page 31 of notebook Court).
In the proof of claims under the law presumes bad faith of the employer and therefore it is he who must present evidence that would exonerate him of the presumption, and therefore the Court is mistaken when it applied Article 65 because no evidence in bad faith, as this is presumed in cases of delayed payment of wages and social benefits.
VIII. The Court's
In consideration of the sixth and seventh positions are related to compensation moratorium, the Board proceeds to its consideration and decision jointly.
is true that the mere filing of a waiver by the employee does not relieve the employer violated the penalty moratorium.
But what did the Court, after analyzing the position held by the actor and the special characteristics of it was concluded that no evidence bad faith on the conduct of the defendant. It is undeniable that the CEO of a company in his capacity as such, must be aware of the accounting management thereof, including, logically correct payment of wages of employees, including yours.
the Court to acquit as compensation moratorium was established in the settled doctrine of this corporation, in that the penalty does not operate automatically, but the defendant come from the employer can show that its action was devoid of bad faith. In this case, took into account the position played by the actor and above all that the company recorded PERFORMANCE differences. Therefore, we can say that the understanding that the second instance fallador given to Article 65 of CS T. is appropriate.
But also, in accordance with operations by the Board and the company was not liable for any amount for salaries and benefits and therefore not appropriate to impose the penalty moratorium set forth in Article 65 of the CS T. allegedly violated by the Court.
not thrive sixth and seventh positions.
In light of the foregoing, the Supreme Court of Justice, Labor Cassation, to administer justice on behalf of the Republic and by authority of law, NO HOUSE ruling issued by the Superior Court Judicial District of Bogotá on 12 December 2003, in the process followed by PEDRO PAUL RODRIGUEZ CASTILLO against TRUCK OWNERS CORPORATION SA
-PROCAM-free in the special appeal, considering that there was no timely objection.
Cópiese, report, publish and returns the case to court.
VILLEGAS EDUARDO LÓPEZ
José Gnecco GUSTAVO MENDOZA ISAAC CARLOS NADER
OSORIO LUIS JAVIER LOPEZ FRANCISCO JAVIER GÓMEZ RICAURTE
ISAURA VARGAS CAMILO DIAZ GALLEGO TARQUIN
MARÍA GARCÍA MENDOZA Ismenia
SECRETARY
Labor Cassation Chamber dissenting vote
No. 23794 EXP
appellant Pedro Pablo Rodríguez Castillo and Truck Owners SA PROCAM
With all due respect, I must save my vote in the this case, for reasons I explain below:
knuckle is true of the unemployment benefit is a social benefit. And whatever the purpose or philosophy, their common denominator is that the worker can only dispose of the amount upon completion of the employment contract that binds him to his employer, because for the life of your link is also known, can not access the same but in special cases which are regulated by law, in which supervision is exercised primarily a government that seeks to correct the allocation of the partial advance payments for severance to the employee. In contrast, when the employment contract ends, the worker may enjoy without hindrance any of those benefits because the employer's obligation is then to deliver it directly to whoever was your server. That common denominator
not vary with the issue of Act 50 of 1990, which substantially changed the settlement system of the unemployment benefit, as if previously paid under the system known as far back now, from the force of this Act is assessed annually with features that will be needed soon.
Article 99 of the Law 50 of 1990, contains six paragraphs, which they import in this case the first four, which comprehensively analyzed and even one by one, leading to the undeniable conclusion that the severance pay prescription of the form covered by that provision, begins to run from the termination of the employment contract.
Indeed:
Number 1 determines that the December 31 of each year the employer must make the payment of the unemployment for the calendar year concerned or by the fraction of this, without prejudice to be made on a different date for the termination of the employment contract. That is, when the employee works throughout the full calendar year, on 31 December that year, he must repay the aid, settlement to be the final, what happens when you work as a fraction of the year. However, when the employment contract is terminated on a different date, the payment shall cover the period from 1 January of each year and the day the employment contract ends.
Item 2 provides that the employer under the law must pay the worker's interests on assistance to the annual rate of 12% or proportionate fraction of the amount paid by the annuity or the fraction of the year.
Number 3 establishes the obligation for the employer to enter into a fund before 15 February of the year following the settlement, the amount of the unemployment for the previous annuity or fraction thereof. If the employer fails to make the appropriation, shall pay a day's pay for each day of delay.
And the numeral 4, which has absolute clarity that comes from its wording, stipulates that if the termination of the employment contract balances exist for the worker to the employer not consigned to the background, will be charged directly to the employee along with the respective legal interests.
So, again reiterated that the new legal system for settlement of the unemployment did not change the date of accrual or enforceability of that social benefit. Simply and certainly dramatically changed the shape of its liquidation. But otherwise kept the same traditional orientation as just the end of the contractual employment relationship, the former employee should receive and use as well as limitations had not required in cases during the term of the contract need to advance partial or loans on it.
The fact that the employer reluctant to involve the appropriation will pay a day's pay for each day of delay does not mean that the statute of limitations as a mode of extinguishing an obligation, start at the deadline he had to enter because that's not what regulates Article 99 of Act 50 of 1990, but something completely different and that was back and said, because the other side should not forget that this punishment is only going until the end of employment contract since this time the obligation to indicate turns into another, which is to pay directly to the worker the balances due for unemployment benefit, including not entered in the background, without prejudice to the penalty for late thereafter that may be imposed as provided for in Article 65 of the Labour Code.
Therefore, the obligation to indicate that it is the employer does not mean that its omission in that sense chargeable since the unemployment benefit for the annuity or fraction of a year that was caused because the enforceability of such social security benefits in strict legal sense of logic - and it must be iterative - starting from the termination of the employment contract, at which in accordance with paragraph 4. Article 99 of Act 50 of 1990, comes to the employer's obligation deliver directly to your ex-server redundancy balances that have been entered in the background, as well as statutory interest on them not previously been canceled.
Therefore, under the rule in consideration, the obligation to indicate to the employer, as just noted, in good faith must be entered in the respective fund to its entitlement in full to the employee. So if you do not, shall be subject to condign punishment for default, without ever such failure will result in harm and punishment for the worker, punishing him with the statute of limitations when the operator does not require the employer so that it commits to unemployment fund, Figure one that would be a condemnation for those inertial in the course of action to claim their rights, not establishing the terms of Article 488 of the T-CSdel and 151 C. PL. and the SS, which can not happen in this event, because it insists, the worker can only claim the whole of his dismissal when the employment relationship ends, can go for delivery to either the unemployment fund or the employer if no those entered in all the time, which means that the duration of the employment relationship can not speak of limitation of unemployment as a social right, which follows a systematic interpretation of Articles 25, 53 and 58 of the Constitution, 254, 255 and 256 CS T., 1 of Decree 2076 of 1967, 1 to 7 of Decree 22 of 1978, 83 of Act 79 of 1988, 46 of Law 9 of 1989, 166 of the DL663, 1993 and 1, 2 and 3 of 2795, 1991 DR. Unfortunately
other was the majority conclusion of the Chamber, which confused the obligation to indicate the penalty moratorium and enforceability of the liquidated amount, which does not correspond to the correct hermeneutic not only of those provisions, but Article 99 of Act 50 of 1990. Ut supra
Date
OSORIO LUIS JAVIER LOPEZ
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