Supreme Court Judgement of 2011 35,711 - Representation Expenses SUPREME COURT APPEAL BOARD OF LABOR
Magistrate
: Gustavo Jose Gnecco Mendoza
35,771
Act Filing 02
Bogotá, DC, first (1) February two thousand and eleven (2011).
the Court decides the appeal filed by the defendant against the sentence Superior Court Judicial District of Manila, Labor Division, dated February 29, 2008, issued in the ordinary process labor AGUDELO JORGE HUMBERTO LOPEZ promoted him ONCE CALDAS SPORTS CORPORATION.
I. BACKGROUND
Jorge Humberto Agudelo Lopez sued SPORTS CORPORATION ONCE CALDAS, so that, on what matters exclusively to appeals rightful unleash the Court, "was sentenced to reset" the value of the award of benefits social, which should be based on the real wage, since the salary was given two different names, a proper salary and other expenses representation, and the award of benefits was made based only on the first "pay as compensation moratorium" by not properly and timely payment of social benefits. " Sought that the sentences are indexed, "in order to maintain their purchasing power."
stated that on January 20, 2004, held the contract of employment with the defendant, that the salary he received was $ 7'000 .000, oo, whereas, in the fourth clause of the contract states that the salary would be equivalent to $ 1 '074 .000, oo, whereas, "the fifth clause of the contract states that the player will also receive the sum of FIVE MILLION TWENTY-NINE MCTE ($ 5'926 .000) and manifests that indicate the cost of representation and would not pay, despite its retributive nature of the service, which is a clause ineffective, the tenor of what is enshrined in Article 43 Substantive Labour Code, "that the prosecuted" was invented this figure, only to avoid paying higher benefits and services obligations, as literally embodied in the same clause FIFTH of the contract, indisputably its retributive nature of the service charge employee, both wages actually named in the individual employment contract as called REPRESENTATION EXPENSES, "and that it" clearly concludes the proof of graduation numbers 48,836, 48,848 and 50,195 for three fortnights, two (2) The month of February and the second in June 2004, which expresses '... CANC. SALARY ... 'and includes the two items mentioned in each payment. "
invited to the plenary, in response to the lawsuit, the couple denied that the complainant's salary was $ 7'000 .000, oo, said that "the salary was agreed upon amount of $ 1,074,000, and a sum oo additional costs by way of representation does not constitute wages. " He said the agreement on salary and expenses representation was agreed, freely and voluntarily between the parties, as provided for in Article 15 of Act 50 of 1990, so it is perfectly lawful and appropriate, and that if the fees of non-wage , by legal definition and agreement of the parties, the employer was not required to include this factor to the payment of social benefits.
He opposed all motions in demand, and proposed the exceptions of prescription, non-payment of amounts due and full payment.
rush fees procedural rigor, the Second Labour Court Circuit ruled Manizales ruling on September 7, 2007. In virtue, he decided:
"FIRST: I declare that between Mr. Jorge Humberto Agudelo Lopez as a worker and ONCE CALDAS SPORTS CORPORATION, as an employer, there was a contract of employment between 20 January and 20 June 2004, for the duration of work determined.
"SECOND: DECLARE unproven except for prescription and and FEE PAYMENT DUE NO LO adjustment against the final settlement of social benefits.
"THIRD: Condemned SPORTS CORPORATION ONCE CALDAS to pay Mr. Jorge Humberto Agudelo Lopez, the following sums of money, properly indexed:
" - THIRTY TWO MILLION FOUR THOUSAND THREE HUNDRED SIXTY SIX PESOS AND SIXTY-SIX CENTS ($ 2'433, 366.66) on account of service bonus.
"- FOUR THIRTY TWO MILLION THREE HUNDRED SIXTY-SIX THOUSAND PESOS AND SIXTY-SIX CENTS ($ 2'433, 366.66) on account of unemployment.
"- NINE HUNDRED TEN THOUSAND AND THIRTY-FIVE PESOS AND THIRTY CENTS ($ 119,735.30) for interest to layoffs.
"FOURTH: SPORTS CORPORATION absolve ONCE CALDAS of the other claims brought against him by Mr. Jorge Humberto Agudelo Lopez.
"FIFTH: Condemned SPORTS CORPORATION TO PAY THE COSTS ONCE CALDAS proceedings on behalf of Mr. Jorge Humberto Agudelo Lopez, at a rate of 20%. "
II. THE JUDGEMENT OF THE COURT
from both parties appealed the decision. Superior Court Judicial District of Manila, Labor Division, accused the ruling here, decided:
"confirmed the sentence handed down on September 7, 2007 by the Second Labour Court Circuit Regular Education process promoted by Mr. JORGE HUMBERTO LOPEZ AGUDELO SPORTS CORPORATION against Once Caldas in items FIRST, SECOND and THIRD. Likewise, the Fourth, except in the acquittal of the compensation claim related to a moratorium. It is therefore ORDERED that paid to former employees operated the sum of $ 233,333.33 per day from June 21, 2004 and until benefits are paid in this orderly adjustment provided.
"is amended in paragraph five of the original ruling to lift the costs at first instance to 50% of cases. The second instance COSTAS also by the defendant. "
As regards strictly to appeal, the Court said:
"On the other hand plaintiff claims the sentence by way of penalty moratorium, given that the defendant was forced to readjust the value of social benefits paid to the worker Based on the determination that the costs of representation-wage character.
"Before considering such a claim, for methodological reasons the Board will address the reasons for dissatisfaction of the defendant, having to do precisely with the nature of salary which he was saddled by Mrs. Judge to payments received by the worker and they were called 'entertainment expenses. "
"says the former employer is not necessary that the parties expressly stipulate that the costs of representation are not wages as mandated by law such payments do not have that character, and, therefore, when the parties agreed this exclusion in the contract signed, simply reproduced what was established in the regulations. "
After transcribing the fifth clause (5 th) of the employment contract and Article 127 of the Labor Code, said:
"Thus, the general rule is that it is pay not only regular pay fixed or variable but what the worker receives in money or in kind as remuneration or direct pay service, regardless of the name given to the payment.
"Therefore, it is clear that Mr. Agudelo Lopez received a monthly lump sum contractually defined as "entertainment expenses", as well as quantity especially concluded the lower court, by virtue of being stable and permanent to catalog service as remuneration, or in other words, as a wage, since it is possible to discern that it was in reason for the office held that the employee's accrued.
"But the fact that the parties in this case have referred to the sum in question 'expenses of representation" in any way preclude the kind of wages, because only the real purpose of the payment, which is not accredited by any means of evidence could contradict the evidence about the nature of remuneration.
"And is that necessarily must be concluded that the contractual clause in comment is ineffective, not only because the sum paid as fees of the service had retributive nature or because it was stable and permanent, but because once considered the whole can be seen that there is no evidence to support the conclusion that it was not JORGE Once Caldas AGUDELO the beneficiary of the amount paid to the latter as "entertainment expenses."
"Hospitality makes the worker, but by the employer, with money from the latter because the former are not. Such expenditures are made on behalf of the employer or on behalf of it, either by variables of Article 32 of the Labour Code subrogated by Art. 1 of Decree 2351 of 1965, or by the activities of representative and represented commercial or commercial rate, which in one way or another fit, thinking of the parties in this process work, especially in a simple professional football player .
"In conclusion, the Board finds no fault with the decision of the lower court to consider as wages such amounts as the defendant canceled the actor as an" entertainment expenses. "
Then he said:
"Referring to the penalty deprecated the plaintiff in the appeal, he should be noted that Article 65 of the Labor Code provides that the employer must pay the employee on termination of contract wages and benefits due, and that if he does not, in default, however, case law has explained that this penalty is not automatic and inexorable application, because each case must be determined if employer has work (sic) in good faith that it exempts from its imposition.
Descending to the case study, the tuition is that despite the voluntary agreement embodied in the fifth clause of the employment contract is ineffective, but also defraudatoria to all appearances, not only the interests of the worker.
"That clauses or covenants as discussed here are 'almost custom that is in football', expresses Jairo Quintero 118M folio statement that this 'I asked because it benefited for purposes of deductions and other' add the same sir. No, the desire protective labor law can not reach prohijar not paid taxes to the state (sic) by the worker, or the latter will pave a good portion of what they received was not compute or disregard to provide social services that benefit.
"On the other hand as already mentioned, is inconceivable, to say the least, was said to be agreed 'a salario único mensual’ de un $1.074.000 y unos ‘gastos de representación’ de $5.926.000, lo que no eran factor salarial para la liquidación de prestaciones sociales.
“Gastos de representación, se reseñó atrás, no hacía el trabajador si no era representante de la CORPORACIÓN DEPORTIVA ONCE CALDAS, además que lo percibido era para su beneficio particular y no de la institución.
“Lo dicho en precedencia hace que se evidencie un mal proceder de la accionada exento de buena fe. Se impone así la sanción moratoria consagrada en el artículo 65 del Código Sustantivo, equivalente ésta a $233.333,33 diarios a partir del 21 de junio 2004 and until benefits are paid in this orderly adjustment provided. This started because the worker's claim by post without having 24 months after completion of the contract. "
III. THE APPEAL
We filed the defendant. The scope of the challenge put it this way:
"The Court must marry the ruling of the Superior Court Judicial District of Manila and in place of resort, revoke handed down by the Second Labour Court Circuit that on 7 September 2007, regarding the sentences imposed for, instead, to absolve the Sports Corporation Once Caldas of all claims (sic) of the lawsuit filed against him by Jorge Humberto Agudelo Lopez or, alternatively, to marry the Court reversed the decision in terms of first instance acquitted the defendant by way of compensation for delay and, in lieu of this decision, confirmed the ruling of the court on this end of the litigation. "
To that end, he raised two objections that were not replicated. COUNT
"The sentence violated the substantive law because it erroneously interpreted Articles 65, 127 and 128 of the Labor Code, surrogates, in order, the first by Article 29 of Law 789 of 2002 and the last two by Articles 14 and 15 of Act 50 of 1990.
"The decision also violated the law because misapplied Article 43 of the Labor Code."
transcribed, which was considered the reasoning of the ad quem, to the effect that "no proof it was argued that the charge is based on an adulteration of the reasons given by the Court" made some comments about it and recalled what was said by this court in its ruling of 7 February 2006 (Rad. 25,734). Next, he noted:
"The Court referred to the 'purpose actual payment 'as a criterion to differentiate if the worker is paid a salary or not, so it would seem that supported its decision on the case initially developed by the Labour Court on the basis of the concepts enshrined in the national labor law before issuing the Labour Code, the Court has consistently held Labor Cassation Chamber of the Supreme Court in place of the code and has been kept unchanged because it had not been modified the concept of pay for the items 14 and 15 of Act 50 of 1990, regarding the elements that compose it and the payments are not wages, but misrepresented the truth is that the rules applied because "the real purpose of the payment (...) does not appear in any media accredited testing ', ie that even if by any evidence is credited, in this case, which has been 'The real purpose of payment, "the appellate court considered the ineffective clause of the employment contract in which the parties expressly agreed that the costs of representation received by the worker did not constitute wages, having interpreted Article 127 of the Code Labour sets the substantive nature of all remuneration paid to the employee, and therefore, in this case, the contractual payments is called representation expenses were classified as remuneration of the service because it is 'a fixed sum' and 'by virtue of being stable and permanent' the amount Jorge Humberto Agudelo Lopez received monthly.
"For the Court, and this consideration also contributed to the erroneous interpretation of the law, the costs of representation can only be paid to those who represent the employer under the terms of Article 1 of Decree 2351 of 1965, which replaced article 32 of the Labor Code, or 'by the activities of the representative and represented commercial or commercial type. "
"There is no expression in the rule that where wage payments are not to conclude that entertainment expenses are only payable to those who are representatives of the employer, so give this limited sense to the legal provision departs from its worded and misunderstood. Moreover, it is undeniable that the costs of representation have never constituted wages as well have expressly provided for both the original Article 128 of the Labor Code as the existing Article 15 of Act 50 of 1990.
"The real novelty of Article 15 of Act 50 of 1990 resulting from the authorization that the legislature granted the parties agree celebrants contract salary payments are not received by the worker in direct consideration of the service, such as, among others, food, housing or clothing that the employer provides to its workers or their family, as if they are explicitly states that are not salary, the worker receives for any of these three concepts will be payment in kind, as currently stipulated in Article 16 of the Act, which supersedes article 129 of the Labor Code.
"If the Act 50 of 1990 in Article 15 authorized the parties to a contract that was not specifically provided pay food, housing and clothing, legal concepts that by definition constitute payment in kind, and not merely occasionally receive nor benefit generosity and that the correct interpretation of this rule differs from that made by the Tribunal, as without at all interested in the name of "entertainment expenses" that expressly gave Jorge Humberto Agudelo Lopez and the Corporación Deportiva Once Caldas to the monthly sum he received, the undeniable fact is that the worker and the employer specifically arranged and so they agreed in the fifth clause of the employment contract, it received for such costs would not be salary or 'Element of pay for the settlement of the various wage claims. "
"As the innovation that Law 50 of 1990 introduced in the labor law supersedes article 128 of the Labor Code was precisely to have authorized the celebrants of the employment contract to specify that no salary would be in cash or kind payments without such agreement would have to be considered as components of wages, the Court misapplied Article 43 of the Labor Code to declare ineffective the fifth clause of the contract of employment entered into the trial today. "
Finally, the Court found that interpretation of Article 65 of the Labour Code, but settled for the penalty moratorium is not self-executing and that each case must determine whether the employer acted in good faith did not consider that Case law has been clear in saying that the correct understanding and correct application of the rule "depends on the justified doubts about the existence of the employer's obligation, or by discussion of the contract itself, the source of the rights claimed, also by unknown without malice or recklessness provision therefore. "
He said the Sports Corporation Once Caldas never denied that the applicant had been his employee, "which he said was that I received it as" entertainment expenses "were not part of their salary. The defense plausible rationale advanced by the defendant, is none other than as expressly provided in the contract of work for which the contractors called "entertainment expenses" and denied that he had not made those monthly payments, but than claimed, and thus an established in the sentence, was the fact that he has agreed, in the fifth clause of the employment contract that payment would not constitute wages or "wage factor for settlement of the different wage claims. "
IV. The Court's
is not true that the Court considered the real purpose of payment "as a criterion to differentiate if the worker is paid a salary or not."
On the basis of service catalog as remuneration or salary element, "by being a stable and permanent" and being "precisely because of the position held by the employee that accrued, fixed amount each month saw the applicant contractually defined as expenses, the ad quem argued that "the fact that the parties in this case have called the sum in question 'representation expenses "in no way precludes its kind wage because only the real purpose of the payment, which is not accredited by any means of proof, could contradict the evidence on retributive nature."
words, after make clear that what the parties actually called representation expenses were salaries, due to be stable and permanent accrue precisely on the activity of the worker, the second-degree sentencing cited " the real purpose of payment "as the element with the potential" to counteract the evidence on restorative nature, "not as a criterion for distinguishing virtue if the worker is paid wages or not, as proclaimed in the censorship.
the Court's view, only the proof of the destination of the sums paid by way of representation costs could derail pay their nature. That is, only insofar as it is shown that such a payment corresponding to the target's own costs of representation, wage derruiría nature.
So the "real purpose of payment", the show missed the judge, is referred to the amount received by the applicant by way of expenses, in the sense that while not proving that, indeed, amount to what the employee receives, in cash or in kind, not for profit, or to enrich its heritage, but to perform fully his duties, received by the applicant on this account is salary.
And walk at all, claiming unreasonable to the Court proof of "the purpose of payment", because, obviously, the costs of representation have a specific destination, which is to improve the image of the employer, as customer.
Without doubt, the costs of representation are intended to enable the company is represented to customers, suppliers or to the public. Concern, in general, public relations and pursue commercial profit, business, or image of the employer, to the future.
In such a way that its purpose is not to enrich the heritage of the worker, because it can not dispose of his free spirit, and to be used exclusively in work related to the commercial protocol or promotion activities or operations sales, which would, for example, invitations to make a prospective client to dinner, and thereby secure a business, closing a sale or arrange service.
is no doubt that entertainment expenses are given to workers who act on behalf the employer to its customers or users and, in general, to people and institutions of all kinds are linked to that one, workers, therefore, are their public image, so it is obvious that requires some economic availability enabling them to cover some expenses that are generated on the occasion of work tasks that are running, and, in appearance and apparently only have personal tinge.
should be noted, moreover, they are not intended to compensate the worker or increase their assets, but offset the costs and expenses incurred by it in order to develop fully their duties.
In sum, the costs of representation not delivered to the employee as compensation for their work, but to utilize it, "a criterion of good faith on their own expense the business object or entity", as it warned the Constitutional Court in Case C-250, 2003 .
The challenge proclaims that "the appellate court found the clause ineffective work in which the parties expressly agreed that the costs of representation received by the worker did not constitute salary, have interpreted Article 127 of the Substantive Labour sets out the nature of all remuneration paid to the employee. "
any passage of the taxed ruling leaves room to assert that the appellate judge was Article 127 of the Labor Code that interpretation, he never understood that everything that a worker receives during the delivery of its services, has retributive nature and, therefore, is salary .
Indeed, the Court, after playing this piece of legislation, said that "the general rule is that salary is not only the regular pay, fixed or variable, but everything that a worker receives in money or in kind as compensation or direct pay service, regardless of the name given to pay. "
Such an understanding of the rule does not distort its true sense, but, rather, refers to its pristine meaning and its true scope. Do not cut, but also extends them.
For the Court, as already made above, the amount received by the promoter of the process as the costs of representation constitutes wages, and that "by being a stable and permanent to catalog service as remuneration, or in other words, as a wage, since it is possible to discern that it was precisely because of the position held that the employee's accrued. " Such salary in her feelings, does not disappear by the fact that the parties had set the name of entertainment expenses, not work as evidence of its actual purpose of payment of that amount in cash, pursuant to break up with evidence of its retributive nature of the services provided by the actor.
the rhythm of that intelligence of the legal canon and in connection with this conclusion, the court of second instance branded as inefficient contractual clause that blew up, "not only because the sum paid as expenses, have retributive nature of the service or because it was stable and permanent, but because once considered the whole it is clear that there is no evidence to support the conclusion that it was the Once Caldas and Jorge Agudelo not the beneficiary of the sum paid to it (sic) last as
. "
The appellant did not raise any criticism to the argument wielded by the Court in that absence of evidence indicating that was the employer and the worker is not receiving the cash amount to cover it as expenses. To him free of objections, continues to serve as a support to the contested decision, thanks to the presumption of legality and success playing in his favor.
Additionally, this argument is fully encompass the undeniable purpose of representation expenses, improve business or corporate image and to maintain or enlarge their market position, resulting, ultimately, in a commercial or business into the future. This means that the costs of representation, indeed, favor the employer as the worker's should be used with a standard of absolute good faith, business object at their own expense.
The Court never stated that the costs of representation "can only be paid to those who represent the employer under the terms of Article 1 of Decree 2351 of 1965, which supersedes article 32 of the Labor Code, or ."
What was stated as follows: "Hospitality makes the worker, but by the employer, with money from the latter because the former are not. Such expenses made on behalf of the employer or on behalf of it, either by the variables of Article 32 of the Labour Code subrogated by Art. 1 of Decree 2351 of 1965, or by the activities of representative and represented commercial or commercial rate, which in one way or another fit, thinking of the parties in this process work, especially in a simple professional football player ".
However, it is true that commercial representation or image to others, which is obviously not legal, labor differs from that in article 32 of the Labor Code, as it is not exercised with respect to workers, but customers or the public in general and to the extent that the worker, by virtue of their particular functions, embodies and symbolizes the employer or the company. But this was not totally alien to the Court, although referred to labor representation is not restricted to such representation, also referred to as the one presented in trade.
There is, then, within the sentencing madness, for, verily, entertainment expenses are given to workers who work on behalf of the employer, who represent to clients or suppliers, which to a large extent, are their image the public.
In such a way that the costs of representation can not be used for remunerate all the workers, since only apply in respect of that act, not as individuals but on behalf of the employer, on their behalf, and that in such a condition, and force compromise.
In this regard, an employee whose duties are purely administrative or operational within the company can not be regarded as acting on behalf of it on their behalf with third parties, and therefore, it is not possible to assign a lower pay the concept of expenses. Doing so, undoubtedly, is the employer's intention to avoid certain workloads, by fraudulent or tortious.
line with its successful view that the costs of representation "are made on behalf of the employer or on behalf of him," the ad quem understood that such a connotation can not preach "just a professional football player."
regard, it must be said that the costs of representation have to be necessarily linked to work activities carried out by the worker, because if they are defined as those that allow you to better fulfill their duties, no doubt to be relate to the performance of their work tasks, so that we enable them to be fully met.
really is not reported in the trial by one element evidencing that the applicant, simply as a football player, business etiquette work executed or carrying out activities or transactions relating to sales promotions or public relations or image in order to secure a business, closing a sale, schedule providing a service, the exclusive benefit of his employer, the Corporation Deportiva Once Caldas, while tended to improve their corporate image, corporate or sports. Is not even tried to attend conferences, courses, sports competitions or sweepstakes on behalf of the giver of work.
is clear that the Court does not argue that a football player can not represent to third parties or to the public the club that serves and therefore accrue expenses. But he concludes from an examination of the proofs of the process, this is not the plaintiff's case.
But the challenge does not raise any objection against this argument the judge of the appeal, as that of a mere football player can not preach in receipt of expenses, because they work on behalf of your employer or represents, in activities involving such expense. Under these conditions, is destined to continue supporting the ruling censored due to the presumption of legality and wisdom with which he arrived at the procedural stage of the appeal.
not escape the opinion of the Court, as stated in advance that the costs of representation does not constitute wages because the worker receives for his benefit, or to enrich its heritage, but to fully perform their functions. But also know that in the occurrence of cars, the sentencing on appeal concluded that the amount received by the applicant by way of expenses, were not really such, but wages to be stable and permanent and accrue on account of office held by the promoter of the process.
So, from the perspective of the Court, the debate does not go through the fringe nature of the expenses. Gravitates to the fact that agreed by the parties to this title does not correspond with the purpose of those, so behave wage character of such kind of direct remuneration for services provided by the applicant.
And, according to this, he effectively dismissed the agreement by the parties to the contract of employment, in the sense that it received for expenses of representation is not a salary or wage factor is the settlement of various claims labor.
Apparently censorship, "As the innovation that Law 50 of 1990 introduced in the labor law supersedes article 128 of the Labor Code was precisely to have Authorized to the celebrants of the employment contract to specify that no salary would be in cash or in kind payments that without such a pact would have to be considered as components of wages, the Court misapplied Article 43 of the Labour Code stating ineffective the fifth clause of the contract of employment entered into the trial today. "
To answer this part of the prosecution, the Court recalls that, according to their doctrinal orientation, under the option provided for in Article 15 of Act 50 of 1990, which succeeded to the 128 of the Labor Code, the parties nature can not ignore the benefits salary which, by law, clearly have that character.
This reflects the inefficiency of law of any contractual clause that the parties deny the nature of salary which inherently is, to correspond to a direct pay service, or intended to give an adjective that does not correspond with that salary. Does not therefore have legal effect in any agreement to be deprived of such wage payments that respond to a direct consideration of the service, that is, straight and without kinks, the work done by the employee.
For example, in a ruling dated December 10, 1998, Rad. 11,310, the Court held:
"A of the provisions that gave greater flexibility to labor relations is embodied in Article 15 of Act 50 of 1990 gives the parties together in an employment contract the right to determine that certain extra benefits or legal aid earned by the worker included in the computation of payment of social benefits. Naturally this does not result in distorting the character is allowed wage law clearly benefits by having such a connotation, because that provision does not establish an absolute freedom but limited to the purposes and events planned by way of example in the standard and those configured similar situations ". And
appeal ruling of July 10 2006, Rad. 27,325, said:
"In accordance with Article 127 of the Labor Code, in the form as amended by section 14 of Act 50 of 1990, salary means" not only the regular pay, fixed or variable Quite what the worker receives in money or in kind and direct consideration of the service, from whatever form or name adopted, such as premiums, bonuses, regular bonuses, value of extra work or overtime, value of work on mandatory days off, percentages of sales and commissions.
"This indicates that an item is characteristic of wage is that it corresponds to a direct compensation payment as the employee's service, the form or designation may take different forms, ie, a fixed salary, or a variable, or one comprising a fixed and a variable amount, in cash or species, so when the payment to the employee whose immediate cause the service it provides, or is its activity on the work done, will pay without the parties may agree to the contrary, as, for example, when This additional work, overtime, days off work or sales required by the worker. In these cases, any provision that the parties agreed to subtract nature salary payments a worker receives for these items, will be ineffective. "
Finally, the Court failed to make an automatic application of Article 65 of the Labour Code, while not avoid the consideration of evidence of the employer's conduct , with a view to establishing whether or not he was assisted in good faith. In fact, the ad quem said
"Regarding the penalty deprecated the plaintiff in the appeal, he must be pointed out that Article 65 of the Labor Code provides that the employer must pay the employee on termination of contract wages and benefits due, and if not Doing so in default, however, case law has explained that the penalty does not apply automatically and inexorably, to be determined for each case whether the employer has work (sic) in good faith that it exempts from its imposition.
Descending to the case study, the tuition is that despite the voluntary agreement embodied in the fifth clause of the employment contract is ineffective, but also defraudatoria to all appearances, not only the interests of the worker.
"That clauses or covenants as discussed here are 'almost custom is in football', as expressed in statement Jairo Quintero 118M folio so 'I asked because it benefited for purposes of deductions and other' added the same guy. No, the desire protective labor law can not reach prohijar not paid taxes to the state (sic) by the worker, or the latter will pave a good portion of what they received was not compute or disregard to provide social services that benefit.
"On the other hand as already mentioned, is inconceivable, to say the least, was said to be compact 'single monthly salary' of $ 1,074,000 and a" representation allowance "of% 5,926,000, which factor were not pay for the settlement of social benefits.
"Entertainment, was outlined earlier, did the worker if it was not representative of SPORTS CORPORATION ONCE CALDAS also perceived it was for their benefit and not the institution.
"What was said in precedence makes it a misdemeanor evidences of free operated in good faith. And the penalty is imposed moratorium enshrined in Article 65 of the Substantive, equivalent to $ 233,333.33 this day from 21 June 2004 and until benefits are paid in this orderly adjustment provided. This started because the worker's claim by post after 24 months without since the end of the contract. "
However, the complaint challenged the erroneous interpretation of Article 65 of the Labour Code, being that, in fact, the court of second instance did not give it a meaning or scope that does not correspond precisely to convict the defendant compensation moratorium on the grounds that his conduct was not assisted in good faith.
According to the appellant, "The defense plausible rationale advanced by the defendant, is none other than as expressly provided in the employment contract which called contractors' costs of representation." The defendant corporation denied he had made this payment, as claimed, and thus as an established fact in the statement, was the fact that he agreed in the fifth clause of the employment contract that payment would not pay would not be . "
Indeed, such reasoning involves going to meet the test, specifically the employment contract, which is not consistent with the direct path chosen to fight the ruling of the second degree. Because of the disposal of the appeal, the Court is not permitted to modify, ex officio, the path or the concept of rape has indicated the applicant.
Consequently, the charge fails.
SECOND CHARGE
accuses Case improperly applying Article 65 of the Labour Code, substituted by 29 of Act 789 of 2002.
claims that rape accused indirect rule came from the following obvious errors of fact made by the judge: Having given
tested, without being so, the Corporación Deportiva Once Caldas had "a misdemeanor (...) free good faith. "
be given not tested them and is that the Sport Corporation Once Caldas acted without malice and without fear by denying the nature of salary "expenses of representation" that he paid monthly the plaintiff, for his refusal was founded in the fifth clause of the contract.
be given not tested them and is that the Sport Corporation Once Caldas acted in good faith by finding that the "entertainment expenses" did not constitute wages or "wage factor for the settlement of the various wage claims," \u200b\u200bbecause it was so expressly provided in the contract.
be given not tested them and is that the Sport Corporation Once Caldas had a credible basis to believe that "entertainment expenses" did not constitute salary or "performance based factor for settlement of the various wage claims ", such has been expressly agreed in the fifth clause of the contract.
Is that legal infringement came to an incorrect assessment of the document that records the contract (pages 8 to 13) and the testimony of Jairo Quintero Trujillo (pages 116 to 119) and lack of appreciation of the testimony of Luz Elena Castaño Marín (pages 120 and 121)
begins by saying, in the development of office, that the valuation error of the fifth clause of the contract of employment arises from the conclusion reached by the Court of how to proceed defendant, because according to the sentence, his single reading 'Makes it a misdemeanor evidences of good faith driven free', due to be 'defraudatoria all lights (...) to the worker's interests. "
According to the appellant, and is rightly considered the interpretation by the Court and due application of Article 43 of the Labor Code, that fact alone would not suffice to conclude that there was a bad exempt from the action in good faith by the fact that he signed the contract, "because if it was the same bad faith should be preached the workers."
Noting that the fact that a clause in a contract can indeed be effective, can not necessarily infer that there was an employer's wrongdoing and that, therefore, be regarded as exempt and qualify your conduct in good faith, and remember that according to the law, for the release of the penalty moratorium , the employer need only show that its refusal to pay a certain labor claims was a plausible, that their behavior was due to his recklessness and acted without malice, argued:
"It is an obvious poor assessment of the employment contract that today celebrated the litigants, and more specifically of the fifth clause of the contract, not having had the express agreement of the parties at least as a plausible basis for the belief of the Corporation Once Caldas Deportivo had not been reckless or malicious behavior as an employer, since it is notoriously bad appreciated the test when the mere fact of having declared ineffective contractual clause in which relied upon by the employer, a statement that was made long after the contract is concluded that the clause declared void will not even allowed to consider that the agreement in good faith to settle its legal to have considered the voluntary agreement under which the parties expressly disposed The 'expenses of representation' would not pay or would constitute 'salary settlement factor of the various wage claims. " Belief that even, it seems, was founded on legal criteria that suggest the validity of these covenants, as the court recalls and precise knowledge
"Shown as is, with qualifying test, the alleged factual errors, I refer to the testimony of Jairo Quintero Trujillo, who was wrongly assessed, because even if it is reasonable to consider '(...) the desire protective labor law can not reach not paid taxes to the state by the employee (...) as is said in the statement verbatim, is a poor assessment of his testimony, the witness clearly said "(...) is almost a custom (...) 'as agreed in the contract of work for wages and payments made on account of the' expenses of representation ', which was Jorge Humberto Agudelo Lopez who requested so he made the payment. "
The demonstration ended by the way:
"If the Court would have appreciated it as agreed in the contract work in terms of payments to be called" representation allowance "and the testimony of Jairo Quintero Trujillo on the there to pay custom fees of professional athletes who work as players and had not failed to appreciate the testimony of Luz Elena Marin Castano, who declared in the same direction, would necessarily have had to conclude that such custom and no law suits, in this case as agreed by the contractors, specifically those who arranged salary payments would be housed in a plausible basis for the action of the Corporación Deportiva Once Caldas, who having acted in good faith and believed to be correct their ways, should be freed from the penalty laid down in article 65 of the Labor Code. "
V. The Court's
is not true, as censorship asserts that the Court had fincado the conclusion of a lack of good faith in the conduct of the defendant on the sole fact of having found it impossible to clause fifth (5 th) of the employment contract.
determining the penalty moratorium, the second-degree sentencing reasoned:
"Down to the case study, the tuition is that despite the voluntary agreement embodied in the fifth clause of the employment contract, is ineffective, but defraudatoria addition to all appearances, not only the interests of the worker.
"That clauses or covenants as discussed here are 'almost custom that is in football', puts it in a statement Jairo Quintero at page 118, that this' I asked because it benefited for purposes of deductions and other "adds the same guy. No, the desire protective labor law can not reach prohijar not paid taxes to the state (sic) by the worker, or the latter will pave a good portion of what they received was not compute or take into account social benefits that benefit.
"On the other hand as already mentioned, is inconceivable, to say the least, was said to be compact 'single monthly salary' of $ 1,074,000 and a" representation allowance "of $ 5,926,000, which factor were not salary for the award of benefits social.
"Entertainment, was outlined earlier, did the worker if it was not representative of SPORTS CORPORATION ONCE CALDAS also perceived it was for their benefit and not the institution."
Of those passages of his sentence, it becomes clear that the judge, on the horizon to sustain the conviction to compensation moratorium, not only relied on the mere declaration of ineffectiveness of the contractual clause referred to, but that fed on other grounds, namely
That clause, in its feel, not to mention ineffective, becomes, obviously, that is obvious and palmar, "defraudatoria" "Not only the interests of the worker.
Surely the Court did mean that the clause involved an action that disappoints. And according to the English Language Dictionary of the English Royal Academy, defraud equals: "Depriving one with abuse of trust or infidelity to one's duties, what touches you right. / / Avoid or evade payment of taxes or contributions. "
That this was the extent of "defraudatoria" with which the appellate judge branded the clause of yore, is strengthened by criticism that earned him the said Jairo Quintero in the sense that this type of clause is futbolero used in the middle and asked for by the players themselves because it was in the benefits "of retention and others."
Indeed, for the Court, in order to develop the protective principle of the rules that regulate human labor, can not tolerate non-payment of taxes to the state or allow the worker consents that "much of what received does not count or be considered for benefits that benefit. "
His attitude of rejection, free and open to the path of acceptance of this clause be usual in the footballing world and crushed, at the request of the workers themselves, because of the advantage it represented, point to "deductions and other" wise is displayed as agreeing to pay for "entertainment expenses" in view of relieving the tax burden of workers and kickback, improve their real income, not of receipt, so that ends up affecting public finances by reducing the proceeds from undue tax and social security institutions and their affiliates, is reduced as the main source of funding, the contributions made by employers and workers, calculated on the wages they receive.
This was considered by the Constitutional Court in Case C-250, 2003, regarding the costs of representation private sector, saying:
"in the private sector, these costs are expenses that are made for the benefit of the company, and can not tax perspective, used as a tool to improve the real income of employees because such improvement would be made for private workers, but under public finances, by reducing the tax on the proceeds. "
addition, the sentencing is perplexed in front of the contractual agreement, as it is "inconceivable" that, next to a base salary of $ 1'074 000.00, was available to pay expenses in the amount of $ 5 ' 926,000, oo.
Such perplexity is not capricious or wild fancy, like, really, is not, in this case, fixing reasonable costs of representation than in the capital ratio, wage, ie, direct remuneration received by the worker for their services.
way as here stated, the challenge did not make any criticism of the reasoning of the court of second degree, which accounted left, so it will continue providing support to its decision, through the presumption of legality and wisdom with reaching the atmosphere of the appeal.
As part of the argument presented to demonstrate the mistake del Tribunal en la valoración del contrato de trabajo que suscribieron las partes, la censura afirma que aun de considerarse acertada la interpretación que del artículo 43 del Código Sustantivo del Trabajo hizo el Tribunal, “…esta sola circunstancia no sería razón suficiente para concluir que hubo ‘un mal proceder de la accionada exento de mala fe’ por el hecho de haber suscrito el contrato de trabajo, porque si así fuera la misma mala fe tendría que ser predicada del trabajador”.
Para dar respuesta a ese argumento, se debe recordar que la Corte, en sentencia del 28 de octubre de 1998, radicación 10.951, explicó:
“Debe anotar la Corte, para evitar equivocation, that the declaration of ineffectiveness of a contractual clause in itself does not imply the imposition of the penalty moratorium but, consistent with its traditional approach to the Board in each case must be examined if there were reasons worthy of consideration or a plausible basis for estimating that such a deal was in line with the law. This also is indicating that the mere fact that the worker signs a contract containing clauses of that nature, not of itself justify the conduct of the employer to refuse to recognize rights that are inalienable in nature. "
Furthermore, the Court considers that any acceptance the worker to a company practice tends to distort the nature of remuneration wage affect the rights or benefits and services settled based on salary, can produce effects in accordance with Articles 14, 15 and 43 of the Labor Code.
Definitely, "The persistent and deliberate action to circumvent wage payments is a sure sign of bad faith employer" as settled by the Court in the decision of October 1, 2003 (Rad. 21,129).
the Court must reiterate that good faith, has always said, is to act loyally, honestly, honestly, as opposed to acting in bad faith, and a person has in bad faith "who seeks to gain advantage or profit without a sufficient dose of honesty and cleanliness" (Gaceta Judicial, Volume LXXXVIII, p.. 223), as stated by the Civil Chamber of the Court in a ruling dated June 23, 1958.
This good faith that the law found in Article 65 of the Labour Code and that has helped, if it is sufficiently proved, to exempt the employer to pay compensation moratorium when it is found legally responsible for failure Payroll and benefits upon termination of the contract, the reasonable belief should not, but either is not a belief but a well-founded, but also because has admitted that corresponds to what has been called simple good faith, which differs from the good faith free of guilt or qualified to be understood, however, is that which can be defined as the consciousness of having acted lawfully and in a spirit free from fraud.
And here is what the Court is the intent of the defendant to ignore the eminently salary which is called representation expenses in the fifth clause (5 th) of the employment contract.
Finally, if not demonstrated a clear mistake in the assessment of the employment contract, the only suitable evidence on appeal of which related censorship it is not possible to analyze court testimony.
Consequently, the charge fails.
As was no reply, be imposed extraordinary costs of the appeal by the defendant.
In light of the foregoing, the Supreme Court of Justice, Labor Cassation, to administer justice on behalf of the Republic of Colombia and by authority of law, NO HOUSE Case Superior Court Judicial District of Manizales, Labour Division , dated February 29, 2008, rendered in the ordinary labor promoted by JORGE HUMBERTO LOPEZ AGUDELO against ONCE CALDAS SPORTS CORPORATION.
Costs in the extraordinary appeal by the defendant.
be five million five hundred thousand dollars in agency law. Practice
Secretariat settlement costs.
CÓPIESE, NOTIFIED, PUBLISHED AND RETURN THE FILE TO THE COURT OF ORIGIN.
Gustavo Jose Gnecco Mendoza
MAURICIO BURGOS JORGE RUIZ CALDERON NECK PILLAR ELSY
GABRIEL LUIS ERNESTO MOLINA CARLOS MIRANDA Buelvas MONSALVE
RICAURTE GOMEZ CAMILO FRANCISCO JAVIER GALLEGO TARQUIN
