SUPREME COURT APPEAL BOARD OF LABOR
Magistrate VASQUEZ FERNANDO Botero
Filing No . 8202
Act No. 006 Santafe de Bogota, DC, February 19 (19) and 1997 (1997)
the Court should trigger actions brought by the attorneys for both sides against the sentence handed down on July 12, 1995 by the Labour Division of the Superior Court Judicial District of Medellín the process established by JAIRO VILLEGAS Aveni a Cofap PARTS MANUFACTURER COLOMBIANA LTDA.
I. BACKGROUND
Avenia Mr. Jairo Villegas filed a complaint against Colombian-Cofap Parts Manufacturer Ltd - once the necessary procedures for a judicial process work is ordered to reinstate the plaintiff to the position of Sales Manager, Seller and cancel the unpaid wages, the alternative that will cancel the indemnity for termination of the contract in a unilateral and unjust, also seeks a declaration that there was coercion by the respondent to submit to Law 50 of 1990 and therefore invalid his statement of will, what the defendant should help settle a severance for all time the contract with the old system without the applicant is required to refund the money that was anticipated. Finally, claims that the court costs are borne by the defendant and all charges to "ultra" and "extrapetita" appear demonstrated.
In support of their claims says he was hired to execute the office of Head of Sales-Seller of the defendant on January 11, 1982, which by virtue of his office was to travel around the country and in return it received per diem , that his dedication was unique because he was subjected to hours of work or results Sales on the road, that in the past 18 months the company has reduced its travel expenses, so that his salary is abated, which made him eligible for the Act 50 of 1990, that his constant complaints by the above facts motivated the employer terminates the employment relationship, on April 17, 1994, inventing reasons that are not true.
answering the demand the company is opposed to all claims in the application and those made as exceptions: prescription, payment of benefits under the salary earned by the employee; irrevocability of the placement of Act 50 of 1990 in terms of unemployment aid scheme referred to, agreement between the parties for recourse to the Law 50 of 1990 free from any vice of consent, acceptance of travel expenses agreements, termination of the employment contract between the parties was set to the law. Assorted
the first instance, the presiding judge who was the Second Circuit Itagüí Labor, ordered the defendant to pay the plaintiff the sum of $ 16.774.224.00 for compensation for unfair dismissal and acquitted of other financial charges alleged, also sentenced the defendant to pay the costs but only 80%.
II. THE JUDGEMENT OF THE COURT By
sentence now under appeal, the Superior Court Judicial District of Medellin, majority, declared the nullity of the clause inserted in the contract of employment relating to the acceptance of the provisions of Act 50 of 1990 as of March 1, 1990 and, consequently, ordered the defendant company to pay the plaintiff the sum of $ 12'143 958.77 by way of unemployment benefit, likewise, reversed the decision to order the employer to pay compensation for unfair dismissal, given that there was indeed found that just cause for termination employment contract because the applicant documents folios 19, 20, 21, 22 and 23 is shown that it incurred against the defendant acts contrary to commercial good faith and the honest and normal desenvolmiento of industrial, commercial, craft and agriculture, according to the definition adopted by the Court of what is unfair competition in Article 10 of Act 155 of 1959.
III. THE APPEAL
The second-instance ruling was appealed by both parties, the respective resources are granted by the Court and admitted by this Court, the proceeds to solve avocado, first, the study proposed by the applicant and its reply. PLAINTIFF'S APPEAL
With the scope of the challenge partly intended to marry Case Court revoked as it condemned the lower court to pay compensation for unfair dismissal and, in place of analysis, confirm that conviction, which otherwise has not delivered.
as grounds of appeal invokes the first, and raises his indictment by a single charge as well:
"The accused of violating a direct way on the concept of inappropriate application of Articles 58, 60, 61, 64 Labor Code, as were subrogated by law 50 of 1990 (arts. 5 and 6) and Legislative Decree 2351 of 1965 (art. 7th.) Articles 194, 195, 200, 210 of C. PC in relation to the CP 145 of T., as manifest factual errors in the assessment of the following tests: a) .- The tacit confession of the defendant's legal representative (pages 63 Mat.) b) .- The application and answer (pages 1 to 5, 29 to 32, 16-18); c) Certification .- Existence and Representation of folios 19, 20, letter of dismissal (pages 68-69). Testimonials Naranjo María Elena Jaramillo (f. 41 and Dione Rocio Urrego (f. 45).
"Try to assess the document left the Chamber of Commerce of Medellin, folio 82.
" made errors incurred the sentencing were:
"1 .- Have proven given, but is not that the actor was fired for making unfair competition with the company;
"2 .- There certainly have been, so we find that the dismissal of the plaintiff was due 'to his continued claims in relation to the reduction of wages and the obligation to submit to new system of unemployment '. "
The demonstration referred to by objecting to the tacit confession of the defendant's legal representative, referred to by the fallador both folio 250 as 253 of the record and said that the ad quem granted full evidential value to the same connected with the fact 5o. demand, while it declined in relation to the 6th., as assertive as the preceding one, thereby committed a manifest error of fact as to both types of test.
Write the appellant that the document in which the Court is based primarily are the certifications of the Chamber of Commerce of Medellín pages 19, 20 and 23 on existence and representation of the defendant company and the other constituted by the actor, from which follows that there is unfair competition from this to that.
argues the appellant, about 19 sheet document that it is disputed by the certification obrante at page 82, issued at the request of a quo by the Chamber of Commerce of Medellin, which states that the designation of TURN SPARE appears not registered any company or commercial establishment in the commercial register. Censor says that the ad quem have appreciated this certificate would have to dispense with the analysis of the first certifications.
censorship also raises even admitting the validity of the folio 19, would be incorrect assessment by the ad quem in the comparison made in such certification with the procedure at pages 20 and 23 on the existence and legal representation of the defendant, because both documents alone do not prove unfair competition Vire Parts may be held against Copafar, as social objects of both shops are different and the fact it is common to both the sale of spare parts for no proof that there are similarities between the numerous parts to know for sure that the applicant sold the same to the defendant. Following
demonstration exercise error of fact, ad quem passing on the assessment of the above documents, the applicant considers the testimony of two reporters point considered by the judge. This Version Naranjo Maria Helena Jaramillo (page 41) and Dione Rocio Urrego (page 45). These statements about the challenger argued that what the witnesses say is that the defendant also sold copper heels "Orren" rubber, ie there is no overlap between expended by the parties to establish unfair competition. Furthermore, the censor inaccurate calls the version that the Court brings the testimony of the deponent Naranjo Jaramillo for what the witness says is that "in that store sold retainers basically copper heels, and Orren that are rubber or packaging. That was only what was sold there, occasionally if a customer needed something and we had a chance to sell, we did. "
Finally reiterates the appellant from examining the two witnesses that there is no unfair competition which has referred the Court in its appeal.
In your chance to reply, says the ad quem defendant did not commit a factual mistake, because it based its ruling on several proofs, and also must respect the sentencing probation, because the appeal did not is a third instance. On the other hand, adds that there is no contradiction between the certificates issued by the Chamber of Commerce, since they were issued on different dates, and may well be that he had voluntarily canceled the commercial enrollment during that period.
also states that the rotation of the activities of the defendant company and the business establishment of the actor was the same and that this is explicitly demonstrated the violation of the duty of loyalty under Articles 56 and 58 numerals 2nd. and 5th.
CST
CONSIDERED
Avoca
the Court may consider this charge proposed by the applicant, on the understanding that the attack is directed is the indirect pathway and not by direct, as mentioned at the beginning of your written challenge. This was concluded after studying the Corporation the full text of legal discourse, in which censorship makes constant references to how the ad quem faced the analysis of the evidence close to the cars, as well as to impute to this judge two errors of fact, all of which it belongs to the challenge by the indirect pathway. For the rest, so also understood the replicant as seen in its opposition to the position of folios 18 and 19 extraordinary resource notebook, so that ultimately the terminological imprecision beginning of the text of claim on appeal is classified as a simple slip of the pen and not a technical failure of the action to prevent consideration of substance.
Likewise, it is noted that due to the provisions of Article 51 of Decree 2651 of 1991, extended in effect by law 287 of 1996, with the rules of substantive law identified as improperly applied, the requirement Article 90 of the Labor Code concerning the indication of "legal provision of national, is deemed violated." This is because although the appellant does not cite Article 56 of the Labor Code, rule that the Court conceded the conduct attributed to the actor to conclude that there was just cause for dismissal, did mention the Article 58 ibidem also quoted by the Corporation to that end and in addition, Articles 60 to 64 of the same code, the latter provision that enshrines the rights claimed in this process as a result of breach of contract of employment.
For the Chamber, as the text of the disputed ruling (Pages 247, 248 and 249), the dismissal of the applicant has justified the ad quem fallador from having found in the plaintiff worker acts of unfair competition against his employer, and those who gave such a connotation resorting to rules of commercial law .
On this topic of legal dispute the court said:
"The Board believes that the real reason for this determination is originated, not necessarily in the originally indicated poor performance, but, as later points out in generic form, dedication the actor 'for sale of other lines in company time with company travel expenses' including specifically states 'diamond machined' and ultimately reiterates the term 'products referred to in the 1st and 2nd paragraphs' "
" It emphasizes that in accordance with the commercial register certificate folios 19 (sic) the applicant owns from March 1, 1990 of a commercial establishment called 'Parts Vire', which is engaged in the 'purchase and sale of automotive and industrial fasteners auto parts (stresses the hall.) The purpose of the employing company includes, according to the certificate of the Secretary of the Chamber of Commerce of Medellín pages 20, 21, 22 and 23, the 'distribution and selling shirts for engines and parts, parts for motor vehicles ...'( stresses the hall.)
And further contends the court of second grade.
"There is therefore room to doubt that the plaintiff was spent by a business establishment of your property, particularly as regards the marketing of automotive parts at the same rotation business activities that constitute the object of your employer.
"Even accepting that not personally handled the sale of his company's products, as the evidence in this regard is not categorically - without ceasing to be embarrassing for him the fact that as a salesman could certainly give preference to articles of its establishment to the detriment of his employer - the fact of owning a business establishment and was partially dedicated to the same branch of activity can not but be regarded as a act "contrary to commercial good faith and the honest and normal development of the industrial, commercial, craft or agricultural ', as defined by unfair competition brings Article 10 of Law 155 of 1959.
"The jurisprudence of labor appeals has ruled on how unfair competition by the employee violates one of its fundamental obligations of obedience and fidelity, under Article 56 of the CS of T., as well as some special set forth in Article 58 of the Code. " Raised
the situation, the Corporation is imposed to study the issue from the perspective in which the Court discussed, without this affecting note that in the opinion of this Court to clearly departed from the terms of the letter breach of the contractual relationship.
However, being true, as fallador deduces the second instance, that in accordance with the certificates of the Chamber of Commerce of Medellín (pages 19, 20, 21, 22 and 23), both the applicant worker as his employer, engaged in sale of spare parts for motor vehicles or parts, each through two separate commercial establishments that basis alone be credited to such proofs, does not show itself in unfair competition made by the applicant against the claimed, because in reality the legal category currently legislated in Title V of the Commercial Code, which refers to the law 256 of 1996, and before the laws 59 of 1936 and 155 in 1959, which was cited by the Tribunal, required for structuring more than coincidental or related commercial activities performed by different individuals or corporations, as can be seen in particular Articles 20 and 21 of Act 59 of 1936, 10 and 11 of Act 155 of 1959 and the second paragraph of article 7. of Act 256 of 1996.
And that is precisely what the legislature sought to protect with the aforementioned regulations was free and fair economic competition of market participants and assuming of course, in an economy like Colombia that the latter was made up, no one, but several officers who developed similar activities or similar. Both fair competition, protected by the substantive law of trade, such as unfair punished by that are part of a dialectical unity, part of a reality which is that there is plurality of competing subjects in the market, which, it insists, the simple fact that the worker in the same market compete with the employer is not sufficient to impute to that unfair competition to justify the termination of his employment contract.
In strict law for the employer must demonstrate, in addition to the concurrence of the business of working with it, that that, taking advantage of contract work, supported by the effects of this relationship has developed in unfair competition as specifically provided for in Article 21 of Act 59 of 1936, 11 of Act 155 of 1959 and the 2nd paragraph. of article 7. of Act 256 of 1996. In the sub lite, any prohibited business conduct by that regulation were tested by the employer and the employee committed by applicant. Sitting
previous conceptual premises, the Court finds that the ad quem itself committed errors of fact that the censor him saying, then, as it turned out, wrongly assessed documents folios 19, 20, 21, 22 and 23 notebook instance, to infer from them the plaintiff unfair competition with their employer by the mere fact that one or the other, be devoted to the sale of automotive parts and no such documentary evidence, in themselves, acts arising unfair competition as legislated in the aforementioned set of standards, especially when the communication dismissal is not manifested, expressly or impliedly, that the respective business establishments of the parties are devoted to marketing the same parts for automobiles.
However, as the ground of qualified test discussed above sentence would be imposed to break the subject of this appeal, it is appropriate to consider entering it has no such connotation, but the Court in this process, although not very categorical taken into account to sustain the conduct of former employees configured unfair competition. Forms of evidence to which he referred as follows:
"witnesses Naranjo Maria Helena Jaramillo (page 41) and Dione Rocio Urrego (page 45) argue, as workers employed by the applicant in that place of business, retaining that part of car that was actually the main business object also dispensing copper heels, Orren (sic) rubber 'other parts', and not only but also in Medellin, Cali, Cúcuta, Barranquilla and Cartagena.
"In the lawsuit he claims that as a seller 'must travel to the different cities' (made 1st and 2nd)" (notebook first and second instance, pages 247 and 248)
It is quoted above inferred that highlighted by the Court with respect to the version of the aforementioned respondents and stated in the application, it is not possible to demonstrate the unfair competition to justify the dismissal of the actor because, first, merely to relate what products sold in the establishment of the applicant, and the procedural part, which in turn job was to travel to different cities. But besides these testimonies and written much less plaintiff may be inferred that the establishment of Jairo Villegas Avenia marketed the same line of automotive products sold by the defendant, nor does it rely on their status as workers divert or attract the customers of the same to the detriment of his employer.
Consequently, the charge thrives.
DEFENDANT'S APPEAL
raises his indictment in two counts, which were put forward, one direct path and the other indirect.
In setting out the scope of its challenge the defendant appellant:
"With this special appeal is intended that the H. Supreme Court Case CASE PARTIALLY second instance in terms of first-degree revoked, nullified the addendum to the contract agreed between the parties to the severance regime change as a result CONDEMNATION defendant company to pay the plaintiff the sum of $ 12.143.958.66 from concept unemployment benefit and 50% of legal costs "
COUNT
the censor says it accuses the ruling by the causal first appeal, for that is a violation of substantive law for misinterpretation of Articles 488 and 489 CS T, and 151 of the CPL, which led to the improper application of Articles 249, 253 and 254 of the Code, as amended second by Article 17 of Decree Law 2351 of 1965, 98 and 99 of Act 50 of 1990 in conjunction with Article 19 of the CST, 1513, 1514, 1740, 1741 and 1750 of the CC maintains the challenger that the breach of these rules took place directly, regardless of the issues of fact and appreciation of the evidence compiled in the file.
charge in the show said that the disagreement with the sentencing is it legal to hold the action to declare the existence of a fact does not prescribe, by which, for the change, by the worker, the scheme separations that shelters him is the termination of the employment contract, where appropriate in settlement of that provision, which effectively comes from the applicant's right to apply for adjustment. Censor says that when section 488 of the TSA refers to the duty payable has been made does not necessarily refer to the date of termination, as claimed erroneously ad quem, but refers to the date on which each party comes to the possibility of contract claim from the other the fulfillment of the obligation arising from the new situation created by Law 50 of 1990, ie, the mutation scheme of annual settlement retroactive to the aid of layoffs.
indicates that in this case, from the time the applicant and the employer agreed to this change in the treatment of layoffs, rose to the worker the right to demand payment of the benefit due to the time and the employer the right that in the future such loans will be calculated through the new procedure so if the employee after the agreement of legal regime change, considered that the consensus was preceded by the force exerted on him by the defendant directors, must establish the claim within three years from the date contractual modification occurred, since at the time employer coercion have achieved its objective.
In its reply said that the end ad quem applicant made no interpretation of the rules referred to by the censor but applied to the letter, noting that Articles 488 and 489 of the CST and 151 of the CPT set point basis for the limitation of rights and actions to date in which the obligation became due. He notes that in the background the controversial issue by objecting is in fact it corresponds to the question: When was the duty payable in this case? and the determination of this when he proposes a distinction between the legal opinion and in fact, which is to say that the core of the issue is not fixing the meaning and scope of the aforesaid substantive and procedural code work .
also contends that even accepting that the debate is legal and not factual reason is not the challenger, because the fact is that the declaration of invalidity of an addendum to the contract of employment applicant, such as that provided in sub judice, and the right to demand the annulment comes to termination of employment, because only then is the unemployment benefit payable in any of the two regimes. Also emphasizes the opponent can not forget that under the clause void of severance regime change it is not effective and which on the relevant judicial declaration under Article 1746 of Civil Code, things become the state in which they were, reiterating that the enforceability of the full unemployment arises from the termination of the work, recalling the Roman maxim as which it is void ab initio is not validated in the course of time.
CONSIDERED
Emprende the Board to study the first of the objections raised by the defendant against the decision of the Court, noting that reading the text of the scope of the challenge laid down in her demand for a censor, at first glance appears incomplete it does not indicate what decision the court claims to host the event instance in which it is worthwhile to break the providence of second grade. However, fully considered the legal discourse exhibited by the challenger, it appears that the same can be inferred that it pursues the consequences unleashed this Corporation as ad quem in If your attack is successful, so that the Board will proceed to examine in depth the proposed charges in the special appeal.
The technical blunder replication signals the first charge is not given, since the reasoning of the Court to dismiss the plea of \u200b\u200bprescription is totally legal because what it says is that the enforceability of the unemployment benefit termination occurs employment contract. No other meaning can be given to the Order under appeal when referring to the explicit requirement "is at the time of the termination of work, corresponding to the payment deficit of the unemployment benefit, effectively arises the right of the applicants apply for adjustment, and therefore from that date begins the statute of limitations, and not from the date of signature of the clause of the sentence is reviewed here is declared nil. "
Therefore, this aspect was not wrong in choosing the challenger accusing the ruling direct way of being "substantial violation of the Act because of an incorrect interpretation of Articles 488 and 489 of the Labour Code and 15l of Labour Procedure Code, since according to the above stated the ad quem was limited, pursuant to the first and last rule referred to, to determine which was the due date of the unemployment benefit, obligation adjustment which was intended as a result of the declaration of invalidity of an act expressing the will of the actor who also claims, concluding that the termination of the employment relationship.
descending, then, the substance of the charge in this position, begin by noting that to determine when an obligation is enforceable labor must come first, the substantive rule that governs and in Secondly, it identified, determine, based on the evidence compiled for this purpose, and for the specific case, what happened Date Of course, in fact enshrined in the relevant provision.
means follows that any discussion on the structure or not a prescription required pursuant to Articles 488 and 151 CST CPL, fix, subject to other legislation, when it became due the "obligation in question ", which in turn requires, to this controversy, consider whether the Court erred in intelligence or scope of the legal provisions cited, concluding that this happened, because it is the unemployment benefit, the date of termination of employment contract. Raised
the situation, has to be before the effect of Act 50 of 1990 is indisputable that the wording of Article 249 of the Labor Code, the obligation to pay unemployment benefit became payable "at the end of the employment contract." However, this was the rule, in the opinion of the Court, was amended on the effective date of that law, because it established, in parallel with the coming in force until then, what he called "The new special of the unemployment" , which varied with regard to the matter under analysis due to which the provisions of Article 99, namely:
"1 ª. On December 31 of each year final settlement will pay, the annuity or the corresponding fraction, without prejudice to be performed on a different date for the termination of the employment contract.. "
"3 ª. The value paid by way of dismissal be entered before 15 February next year, individual account in the name of worker severance 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.. "
And there was a change as the concept of "duty" is viewed from the perspective of the debtor, it is clear transcribed regulation, in that new unemployment benefit scheme, 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; also 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 bound, quantified for the respective years that social security benefits should be raised from the above date, as the day 14 of this month is the limit it has to deposit the full amount in 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.
The aforementioned criterion is applicable to the case that this is because the adjustment of the unemployment benefit is claimed in the appeal based on the declaration of nullity of the expression of will of the plaintiff to benefit from the new regime for the regulation of social provision Law 50 of 1990. Foster authorizing the same in Article 98, whose externalization imposed on him by the employer, the wording of articles 1 and 3 of Decree 1176 of 1991 that regulated, permanently settled in el auxilio de cesantía del actor hasta la fecha por él fijada y depositar su valor en el fondo por éste elegido, para lo que tenía plazo hasta antes del 15 de febrero del año siguiente a la tasación, pues para esa época no había terminado el contrato de trabajo.
Por lo tanto, en razón hasta lo ahora comentado ninguna duda queda que el Tribunal interpretó erróneamente los artículos 488 del C.S.T. y 151 del C.P.L. porque la exigibilidad de la obligación y por consiguiente, el derecho correlativo del actor, a reclamar el pago del auxilio de cesantía en los términos por él solicitados, no era a la terminación del contrato de trabajo sino a partir de la fecha en que la demandada, subject to Articles 1 and 3 of Decree 1176 of 1991 in accordance with paragraph of Article 98 of Act 50 of 1990, was to settle definitively the value that the concept of social benefit it was for the actor.
For the previous aspect, then, the position under review should prosper in the event concluded that the applicant, within and under the terms already identified and discussed had not claimed the defendant regarding the right of the assistance of severance payment of which now claims subject to what he calls "the old system."
To elucidate the aforementioned first point should be warned is undoubtedly a manifestation of the actor will accept the new special of the unemployment benefit provided by Act 50 of 1990, which consists in the reverse side of folio 59 of the notebook of the courts referred to in the judicial inspection at page 47 vs ibidem, is that in the written record was made a slip of the pen, because it expresses that produce effects "from the 1st. March 1990 ", which was not possible because the law went into effect on 1. January 1991. It is therefore only logical that we must understand that there was no reference to year 1991 as when the defendant accepts its demand for appeal mentioned that date (page 33), also in the judicial inspection is only submitted a photocopy of the application for membership of the actor to fund severance Protection dated January 31, 1992.
mean this, then, that the employer's obligation to deposit the sum of the unemployment benefit that the plaintiff was entitled to March 1991, it was required, as already pointed out in clearing this first charge of special appeal to From February 15, 1992, which in turn meant that ever since she started running the statute of limitations of three years prescribed by Articles 488 and 151 of the CPL CST
Therefore, as the actor, within such period of three years, raised controversy over the valuation of its liquidation and unemployment benefit through the application that gave rise to this process because it presented on 30 May 1994 (fl. 5 Mat. NoteBook instances), it must be for that date or to that which was supplied to transfer the plaintiff letter (June 23, 1994), was set to the proposed requirement and, therefore, that half but could not be accepted, as indeed occurred but for another reason.
This conclusion prevents the charge prosper, which does not mean that you do the following details:
1. Following the traditional approach of the Courtroom in the sense that what is required are the rights and labor actions, not the facts on which are founded, we have that the environmental improsperidad unless otherwise stated, blanket not only apart from the claim concerning the payment of unemployment benefit "under the old system" but also, for the causal link there, which says: "Declares that the defendant coerced the plaintiff to submit to the law 50 of 1,990, against her will and that, therefore, invalid ..."; his declaration of intent is part of the appeal which was the subject of express statement in the Court's ruling.
2 .- For the last reason is what the Court does not analyze the prescription from the perspective that a claim was made solely to obtain a declaration of nullity of a legal act of the applicant, as is the statement of intent to invoke this Law 50 of 1990 in regard to unemployment benefit, because if so the rules to take into account, lack of regulation of labor codes on this specific point would be the civil code, specifically those contained in Articles 1502, 1513.1740 and 1750, which eventually could lead to reaching deductions inconsistent with provisions of the work, for example, that the term to ask termination would be four years: that the force would hardly occur because evil always admit that repair.
3 .- It is not acceptable unleash the claim would result from the right to readjustment pay, as requested by the applicant in the reply, subject to Article 43 of the CST, which regulates the issue of ineffective clauses, arguing any controversy with respect arises from the termination of the employment contract, because the contested herein be authorized by law, by itself is ineffective, but its validity is challenged due to a defect of consent.
SECOND CHARGE.
Accused the ruling by the causal first appeal as violative of substantive law, he says, through the abuse of Articles 249, 253 and 254 CS T., amended second by Article 17 of Decree 2351 of 1965, which resulted from the violation of media, also from inappropriate application of Articles 19 of the CST, 1494, 1513, 1514, 1602, 1603, 1740, 1741 CC, 145 of the CRT and 185 and 210 C. PC
He notes that the breach of these rules was caused by the indirect pathway by misapplication of the same, because on the basis of them considered that the sentencing was invalid the agreement between the employee and the defendant, whereby the actor changed the system of severance of Act No. 50 of 1990 and was so concerned that its proper implementation has had lead the Court to declare the agreement valid and correctly estimate the unemployment liquidated at the end of contract.
The appellant says that the rules violation was the result of the following qualifying blatant errors of fact:
"1. Have the proven, although they are not, that the defendant forced the plaintiff to benefit from the new severance arrangements under the Act 50 of 1990.
"2. Dar by borrower, although they are not, that the defendant exercised force or coercion against the applicant in order to force a regime change in severance.
"3. Having an established, although not pregnant, the expression of will of the applicant, as reflected in the signing of the addendum to the contract work was lacking Llibertad (sic) and spontaneity;
"4. Dar as proven, although they are not, that the defendant coerced the plaintiff to the loss of employment or salary freeze, but welcomed the new regime is severance of Act No. 50 of 1990;
"5. Have the demonstrated even if not, that such coercion was maintained until the termination of the employment contract.
Also
the appellant states that the factual errors that said were caused by incorrect assessment of the following tests and lack of appreciation of which is specified below:
As evidence referred incorrectly assessed the response of demand for confession contained therein (page 16 to 18), the addendum to the contract of work on regime change in severance (folio 59 Mat., 71 Mat.) tacit confession of the defendant's legal representative (page 63) and as the testimony of folios 62, 63, 110, 164 and 179. Proof
unappreciated says it was the diligence inspection judicial folios 66 and 67
The demonstration by the censor argues that jurisprudence of this Court has consistently stated that by mutual agreement between employer and employee can modify and even terminated the employment contract, can one the other parties offer cash compensation to accept resciliar the contract without such an offer could be described by itself as a form of coercion or violence against the partner, because we can not forget that the error, force or deception not presumed but must be fully demonstrated if any suffered by the person alleged.
states that this matter should be taken into account the rules of common law, as to which that force is vitiated consent is required to reach an intensity capable of disturbing a man in normal conditions with the threat of serious and irreparable harm and that is also unfair not to be enough to just awe in face superiors. Argues that none of these requirements are met in this case and that the majority of the Board that produced the challenged ruling is wrong, while the dissenting judge is right when it considered that the case is not proven the existence of any coercion vitiates consent the actor when he signed the rider visible at pages 59 Mat. and 71 Mat.
also notes that in response demand the company said it was an economic proposition for those who decided under the Act 50 which was received by the applicant no later had shown any disagreement with it, while indicating that the judicial inspection showed that company provided workers with a consistent economic proposal to increase wages dramatically in the months of March and September 1991, given that it entered in the minutes of the procedure was neglected by the Board falladora and did not allow the ad quem find that the severance regime change will mean the employee with a significant increase in pay. With regard to confession fictitious states that a defense the fact five of the application and the judicial inspection is faded that applicable to the defendant for not visiting his legal representative from the interrogation that he was summoned. Finally
analyzes the testimony relied on the ad quem, to reiterate that no actor against coercion to which he referred the court of second instance committing blatant factual error.
CONSIDERED
Providence Considered second degree with regard to the findings of fallador on the circumstances in which the applicant was immersed in the severance scheme of Act No. 50 of 1990, is the Hall appealed the ruling, so the main, was based on the visible testimony at pages 62, 110, 164, 173 and 179 of the record and that only tangentially relied on tacit confession of the defendant, pursuant to Article 210 of the CPC
The Court on this aspect of the discussion said:
"Relative to other end of the debate raised in the appeal sustaining the statement to the effect that the demonstration invalid complainant's benefit severance arrangements under the Act 50 of 1990 because the expression of will was tainted by coercion by the defendant employer, debiéndose act accordingly to account for the unemployment benefit, retroactively as mandated by the TSA for workers involved before the issuance of this law, the Board considers the following relevant considerations.
"From the testimony practiced in this process, namely the testimony given by Martha Elisa Rendon Cano (folios (sic) 62) and transferred to test the legal formalities in that it is validly received testimony in another hearing process of the defendant, which is in the certified copy (Article 185 of C. PC), made it among others by the testimony of Olga Lucia Cadavid Vallejo (pp. 110), Jhon Jairo Ramírez Posada (pp. 164), Diego Velásquez León Bustamante (pages 173) and Gilbert J. Roman Usma (page 179), it follows that the defendant employer pressure on several of its employees including the applicant to which severance benefit from the scheme established by Law 50 of 1990, arguing among other grounds: that was a statutory scheme, that those who welcomed them salaries would increase further, visiting the family of each to convince them that it was more appropriate to the new system of unemployment and adding that workers did not accept the new regime be dismissed, which it did with some of them. "
And later in provided also said
" Out of this, under the tacit confession of the defendant, must be admitted that the statement is true in fact demand the 5th that "The employer, in their eagerness to unload work obligations forced the applicant under the Act 50 of 1990, he was told that the layoffs will continue managing a private fund which would have a higher return. Lacking expression of the will of freedom and spontaneity ", this confession does not appear distorted in the process" (fls. 251, 252, and 253)
For
So, being the court's decision based primarily on testimonial evidence, and given the focus of the office, it could be attacked on appeal for alleged errors of fact, as did the censor, because according to article 7. Act 16 of 1969 in that kind of proof can not rely on a mistake of this nature, not being qualified probanza.
Allende original aspect to the Board is also clear that the ad quem hit when applying Article 210 of CPC, said the fictitious Confession of the defendant, concluding the statement in the fact 5o. demand, meaning that the employer forced the actor to benefit in severance of the law 50 of 1990, as also the confession was not enough to be affected by any form of evidence, even by judicial inspection strange lack of appreciation as to censor, but the content lacks the efficacy to annihilate the effects of that.
And it observed the diligence in question is concluded that as it pertains to the circumstances surrounding the placement of plaintiff severance scheme of Act No. 50, judicial inspection in itself nothing to report thereon as an instrument, which is , factual verification by examining people, places, things or documents, as defined by Article 244 of CPC, noting that while it contains report from an employee of the defendant regarding the factual context in which the applicant was the acceptance of the severance scheme of the Act 50, it lacks the potentiality to prove that in this manifestation of will no coercion, because, first, no witness can be qualified as it is received without the proper formalities in the form of evidence (art. 226, 227 and 228 CPC) and therefore can not be argued that it is the situation envisaged in paragraph 3o. Article 246 of Civil Procedural Code, which is why probation is inappropriate.
But it is accepted in grace discussion that this report is comparable to a witness, it is known that it could not be found over on appeal, by the provisions of article 7 and discussed. of Act 16 of 1969.
There shall be no costs for the special appeal because the plaintiff succeeds in the proposed by him and the defendant's allowed to make a doctrinal correctness.
Consequently, not having incurred the ad quem in the errors which he is charged, the charge fails. CONSIDERATIONS FOR INSTANCE
Around the dismissal of which was the subject the applicant refers the Court to the considerations made to decide the single charge made by him in his demand of appeal and which concludes that the termination of employment of the actor unilaterally by the employer is unfair, noting also that the reasons adduced by it verbatim in the letter terminating the contract (page 68) is not demonstrated the Court. In fact, in the present there is no evidence that workers, in their hours of work, retaining and selling diamonds, using resources of the defendant as per diem or passages, as it was passing on the claimed. Nor was shown or rebellious behavior or defiance of the plaintiff against his employer, also is accused in the document link unilateral termination of contract.
So, in host instance the sentence should be pursued for damages in the first instance was imposed on the defendant by the dismissal of an employee claimant, amounting to the sum of $ 16'774 .224.
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, CASA PARTLY ruling issued by the Labour Division of the Superior Court Judicial District of Medellín , dated July 12, 1995, in the process of first instance ordinary labor promoted by JAIRO VILLEGAS Aveni against Cofap PARTS MANUFACTURER COLOMBIANA LTDA. reversed the decision in first grade to accommodate the appeal for damages unfair dismissal, and not the house on the rest. On site instance upheld the sentence imposed on the employer for compensation for unfair dismissal of the plaintiff, assessed by the court of first instance in the sum of $ 16.774.224.00
no costs for the appeal.
CÓPIESE, NOTIFIED, THE GAZETTE INSERT INTO COURT AND RETURN TO THE COURT OF ORIGIN. FERNANDO VASQUEZ
BOTERO
ESCOBAR FRANCISCO HERRERA ROBERTO HENRIQUEZ JOSE VERGARA
RAFAEL MENDEZ JORGE ARANGO IVAN PALACIO PALACIO VALDES
GERMÁN ZUNIGA RAMON SANCHEZ VALVERDE
LAURA MARGARITA GONZALEZ MANOT
Secretary
Source: Supreme Court
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