SUPREME COURT APPEAL BOARD OF LABOR
Magistrate VILLEGAS EDUARDO LÓPEZ
Reference: File No. 21129
Act No.65
Bogotá, DC, first (1.) October two thousand and three (2003).
Cut Solve the appeal by the court seized POMBO DE MARÍA JOSÉ MADERO LORENZANA against the sentence handed down by the Labour Division of the Superior Court Judicial District of Bogotá, November 15, 2002, in the case brought by the appellant against companies promoting ANDINA SA and PEÑALISA RECREATION ENTRE RIOS SA. I
. BACKGROUND
POMBO DE MARÍA JOSÉ MADERO LORENZANA companies sued Recreation Advocate Andina SA, and Entre Rios SA Peñalisa to being declared the solidarity among them concerning labor claims the following: charges for work on Sundays and holidays , recalculation of premium services, vacations, severance relief, interest thereon based on the wage actually earned. Compensation moratorium under Article 65 of the CST and indexing.
In support of his motion stated in summary that was linked to society Recreation Advocate Andina SA on 22 August 1988, working under contract for an indefinite term. On October 31, 1991 was appointed Director of Sales. The company Peñalisa Entre Rios SA, was established on 1 June 1990 and fulfilled its purpose in the same physical space of the first of the companies named. The companies jointly developed the urban development project called "Puerto Peñalisa" and from that time he served as Sales Manager for both companies, one of whom was a member of the other. Had a variable pay consists of a fixed monthly fee and a commission on sales. For the payment of these commissions was to present different accounts of recovery by various concepts such as restaurants, and on behalf of others in his family. These values \u200b\u200bwere not included as a factor of wages for payment of social benefits, no holiday for the duration of the employment contract and termination. (Fls. 1 to 24). In response
libel legal guardian of Peñalisa Entre Rios SA, said he did not accept the truth of the allegations, which otherwise did not meet legal requirements and case law since they contain more than a factual situation and assessments that can not be considered as true facts. Proposed the statute of limitations defense, charging him not because, lack of obligations. In the same sense, co-defendant said Recreation Andina SA Promotora (fls. 40 to 43 and 47 to 51).
Case By May 24, 2002, the Circuit Court Labor Twelve of Bogota, said that companies were summoned to court severally liable for the debts of the applicant's employment and ordered that way by way of a severance reassessment the amount of $ 8'789 .446, oo, for adjustment of interest to them $ 925,910, oo; penalty for failure to timely payment of interest on $ 925,910 severance, oo, for recalculation of premium services 4'338 $ 270.10; for holidays 3'323 $ 888.86 and Title $ 73,864.20 compensation day moratorium from January 5, 1994 termination date until the day the cancellation of obligations. Acquitted of the remaining claims and held part proved the exception of prescription (fls. 1013 to 1048).
II. THE JUDGEMENT OF THE COURT .-
Unleashing the appeal filed by the defendant, Superior Court Judicial District of Bogotá, by decision of November 15, 2002, revoked the letter f) of section two of the first failure degree and instead cleared the defendant companies as compensation moratorium. Confirmed in others.
As it is for the extraordinary remedy, ie what the moratorium threatening forms, ad quem estimated that in this case is not possible the application of Article 65 of the Labour Code, since the moratorium conviction compensation is neither automatic nor inevitable, but should be considered the employer's conduct.
said that throughout her employment, the worker was in accordance with the payment for non-payroll and through third parties, for it was she, and so confirm the respondents, who facilitated the identification numbers of people you trust to will cancel the commissions, it had accounts receivable on behalf of third parties, but failed to find any kind of pressure so that the actors are such conduct. "This situation is accepted by the applicant to acquit interrogation part (fol 182 to 191), who also said that on several occasions, partial unemployment was canceled, with no demonstrated disagreement."
the Court goes on to say that in this situation, in his opinion, no sanction should be imposed for non-payment of allowances to completion of the employment relationship, "then payment in the manner he came from a agreement between the parties and only when the applicant claims vows to resign as no bad faith in the conduct of the employer. "
support of its sentencing decision, the argument invoked the Court sustained the ruling of June 28, 1985, which stated:
"It is therefore to assess the Board in this respect the conduct of the parties, and it is clear that the existence of a wage or bonus that was paid out of payroll and not on books, but it was not possible under the agreement of the worker. It certainly benefited from the irregular system, which was also common practice in the company as the witnesses claim to certain obvious advantages, real or apparent, as have less mandatory deductions and pay less taxes. The actor's consent to a move in his favor, it follows in addition to the lack of any previous claims in the many times that were settled and paid benefits (severance pay, bonuses, vacation) as the single value of nominal wages. "
"Teach the famous legal aphorism, nemo auditur propiam allegans turpitudinem sum, and in accordance with this classic principle of equity declines in this case the Board to impose sanctions for non-payment."
III. Appeal .- THE
dissatisfied with the previous decision, the applicant appealed, which, once granted by the Court and accepted by the Board, we proceed to resolve prior to study the appeal and demand for its reply.
The appellant claims that the Court "case part of the sentence pronounced by the Superior Court Judicial District of Bogotá, Labor Division, dated fifteen (15) November two thousand and two (2002), as to absolve the conviction overturned compensation that the moratorium had dispatched a-quo at the rate of $ 73,864.20 per day from 5 January 1994 and until the day you cancel the debts owed to the plaintiff and once converted to host the Honorable instance appropriate to confirm corporate all parts of the sentence of a-quo, or in the alternative-index appropriate sums for concept (sic) the sentences imposed by the a-quo in the second paragraph a), b), c), d ), e) of his sentence, as to costs shall make the relevant process. "
formula
To this end four charges, which for reasons of method will be studied first, as follows: FIRST .-
CARGO "I accuse the ruling appealed by the causal first appeal specified in Article 60 of Decree 528 1964, as amended by Article 7 of Law 16 of 1969, this is to be infringing, by indirection, of substantive law in the form of misuse of Article 65 of the CS of T. force at the time of the fault and that is compensation for non-payment, in relation to Articles 13, 14, 16, 18, 19, 21, 22, 23, 25, 26, 27, 34 replaced by section 3 Decree No. 2351 of 1965, 36, 37, 38, 39, 55, 56, 57 paragraph 4, 59, 127, replaced by section 14 of Act 50 of 1990, 129 replaced by section 16 of Act 50 1990, 130 replaced by section 17 of Act 50 of 1990, 132 replaced by section 18 of Act 50 of 1990, 134, 138, 139, 141, 142, 144, 149, 186, 189 replaced by section 14 of Decree 2351 of 1,965, 190 modified by Article 6 of Decree 13 of 1,967, 192 as amended by Article 8 of Decree 617 of 1,954, 249, 306, T. CS, Article 3 of Law 52 of 1975, Article 8 of the law 153 of 1,887. "
The legal violation was the result of the following obvious factual errors committed by the sentencing:
"1. Shown not to declare them and is that the defendant companies jointly and severally, for the duration of the employment contract and ultimately to the termination, did not pay to Mrs. MARIA JOSE LORENZANA all social benefits and vacation pay owed to actually earned .
"2. Shown not to declare them and is, that the defendants acted in bad faith, not only for the duration of the employment contract but the termination, by not paying the full social benefits of the applicant based on the wage actually earned .
"3. To consider demonstrated beyond be, that the defendants acted in good faith to the termination of the employment contract of Ms. MARÍA JOSÉ LORENZANA to not pay the full social benefits and vacation actually earned wages.
"4. Shown not to declare them and is that all the time of employment, the defendants acted in bad faith, to the extent that the termination of employment contract was paid only benefits and vacations on a salary of $ 625,000, oo, when his salary was the amount of $ 2'215 925.91, ie a percentage difference of 370% per month.
"5. Shown not to declare them and is that all the time of employment and termination of the defendant companies exerted a dominant position over the defendant.
"6. Shown not to declare them and is, that despite substantiating evidence showing from the time of submission the application, that Ms. MARÍA JOSÉ LORENZANA had a fixed and variable salary, the defendants did everything possible hide, to the point when answering the application were not discussed or argued that it made payments to the applicant through their relatives were in agreement with the former employees, remained negative even when it filed its appeal.
"7. To consider demonstrated beyond be, that Mrs. MARIA JOSE LORENZANA was satisfied with the action in bad faith of the defendants, in the sense of paying all their variable pay and awards sales commissions payable to third parties.
"8. To consider demonstrated without being so, the applicant admitted that he had accepted that the vast majority of your monthly salary will be paid out of payroll. " Report as evidence
wrongly appreciated the applicant's confession contained in the interrogation of part (fls. 189 to 193), the answer to the complaint (fls. 40 to 43 and 47 to 51), the admission in the interrogation of the legal representative of society Recreation Advocate Andina SA (fls. 170 to 174 and 177 to 179), the admission in the examination of part acquitted by the legal representative of society Peñalisa Entre Rios SA (95 to 97 fls. , 113 to 115, 166 and 170), and the testimony of Josefina Reyes Inés Nieto, Maria Cristina Sinisterra De La Vega, Angela Castillo Henao and Andrew Couffray Nieto.
In the demonstration by the censor says that the Court would not have incurred if there are errors reported correctly analyzed the evidence of admission in the interrogation of the applicant, a simple reading of the twenty responses can not infer that the company had acted in good faith, on the contrary, what is your reading is that the employee acted according to the petition to him by his employer.
Indicates that the plaintiff signed: "QUESTION .- Say what is true whether or not, according to the different answers you have given this system of payment that you said there had acceptance? Ranked the question is asked of the pardoning, and answered .- "If there was, I clarify that my acceptance was always due to confiavilidad (sic) that the company gave me as I have said all of the above."
adds that the fact that the worker had not claimed he received partial severance payments, bad bad faith can relieve the employer, as this is caused when the termination of the employment contract does not cancel your worker all wages and / or social benefits actually accrued salary. Employer's bad faith is corroborated by the percentage difference of more than 545% between paid and what is established.
indicates that payments were made to the worker through his son and sister were intended by the company, not only to avoid the obligations levies and social security contributions but also to avoid paying social benefits on these sums of money. The sub
examine the defendants not only failed to justify the non-payment of social benefits in accordance with the wages actually earned, but throughout the process denied that fact. Notes that just read the responses to the application and the confessions contained in the interrogation of some of the legal representatives of the defendants to realize that did not report the fact the process.
When asked the legal representative of the Promoter Andina SA Recreation if the plaintiff received a commission equal to 2 per thousand payable on the total value of sales, said: "It is untrue and clarified, according to the contract employment signed with Mrs. LORENZANA was not agreed any payment for commissions. " He added that the files consulted accounting "so far not found any payment by way of commission." In addition, respondents gave was not only elusive but sought a stay order to prepare responses.
If any court of second degree correctly analyzed the questioning on the part cleared by the legal representative of Peñalisa Entre Rios SA would have noted that went so far as to deny not only employment but claimed that payments were made her society by way of fees.
In the responses of demand that were not properly appreciated by the Judge Ad quem the two companies denied all the facts of the case and the reasons for the defense remained silent on the variable salary and made no demonstration of how was fixed salary he was paid to the worker.
the censor says that several witnesses were appreciated by the Tribunal failed. If there correctly estimated statement Josefina Reyes Inés Nieto, Accountant of the defendants would have found that the payment of commissions for third parties was a system imposed by the Company, these accounts must be previously approved by the General Manager. That payment of fees must be received by the workers. This situation is corroborated by witness Sinisterra Maria Cristina De La Vega, who notes that the payment of fees through third parties was a requirement of the employers and was extended to all workers. Couffray Andrés Nieto, Secretary General of the respondents indicated that different strategies were used for non-payroll payments and for this purpose the applicant must pass accounts in the names of relatives, in other cases the sellers are obliged to provide companies with the same purpose.
opposition for its part maintains that the plaintiff admitted that the payment was agreed between the parties, and that acceptance is indestructible if the attack is made with less conviction evidence as claimed by the attacker.
IV .- The Court's .-
censorship accuses the Court for revoking the sentence imposed at first instance, as compensation moratorium.
The Court's argument for such a decision is that the payment of wages and benefits made applicant worker during the labor relationship outside of payroll and through third parties, included his endorsement, he always showed conformity and even facilitated the identification numbers of the people you trust to the commission was canceled, without had demonstrated that he was under pressure, which distorts bad faith on the part of employers. According to the Corporation should not impose the sanction for non-payment of allowances to completion of the employment relationship, "for payment in the way they did, came to an agreement between the parties and claims only when the applicant makes the determination to resign, so that no bad fe en la conducta de la empleadora…”.
El Tribunal al haber concluido que en el presente caso existió buena fe patronal incurrió en un error con el carácter de manifiesto que lo llevó a revocar la condena por indemnización moratoria impuesta en primer grado.
El Juzgador Ad quem de la confesión hecha por la actora en el interrogatorio de parte (fls. 189 a 193) y que el censor acertadamente denuncia como apreciada erróneamente, concluyó la aceptación por parte de la trabajadora de la conducta asumida por la Empresa en relación con el pago de la remuneración salarial y derivó la buena fe patronal. Sin embargo, desatina el Tribunal porque ese asentimiento de la trabajadora can not be understood to imply ignorance of the nature to accept salary payments will be conducted for non-payroll and thus affect the final settlement of their labor claims, which otherwise would not receive part, for any worker's consent to a practice of the company during the term of the contract, which distorts the nature of remuneration wage affect the rights or benefits and services settled based on salary, can produce effects in accordance with Articles 14 and 15 of the Statute Labour.
Shown as is the error of assessment described in this test, the Court can begin to analyze the evidence to accuse the office, which is palmar to the Company for the payment of wages of their workers took a behavior that was settled and was paid through commissions that were settled on behalf of third parties, which is bad business practice, with which it aims to reduce unlawfully amount of its obligations to social security institutions, behavior that enough to set the bad faith, also for the worker. The persistent and deliberate action to circumvent wage payments is a sure sign of bad faith employer.
Sinisterra The witness Maria Cristina De La Vega (fls. 337 to 342) who worked for the defendants between 1989 and 1991, said the plaintiff "received commissions on total sales of all of us, I think that 1 billion and is liquidating it on behalf of third parties, and liquidated all of us at the demand of the company." Later added that she had touched up a company. Andrés Nieto Couffray Counsel, Secretary General of the defendants (fls. 353 to 356), said: "Because of my job, my responsibility to know the subject work of societies, the way in which commissions were paid and how that some of the expenses paid out of payroll. ... Within the strategy the company had spent their accounts by individuals other than employees and children or siblings of the employee. For MARÍA JOSÉ Lorenzana (sic), if I remember correctly, had accounts in the name of her son, but I'm not sure .... "
So, the Court having dismissed the bad faith of the employer and the worker's acceptance of business practices for payment of wages, incurred the factual mistake is passing on and to that extent by the failure prosperous and be married partially overturned the conviction as indemnification moratorium in the first instance.
Because the post room was oriented specifically to obtain compensation condemnation and accusations moratorium sought second and third conviction for indexing, raised as a subsidiary of the moratorium, the Court is exempted from study.
free in the special appeal.
host instance in addition to the above on appeal, it is clear that this process is to test the strength of the employer to pay what they wanted to bypass the system of disguised compensation. From the answer to the complaint and the interrogatories from rendered by the legal representatives of the co-defendants, the companies denied that part of wages was made up of sales commissions and that his payment had been paid out of payroll, plus an attempt to deny the character pay as they were not taken into account in making final settlement, so that elements are not pay the employer's good faith.
So, the Court as the trial court shall confirm the letter f) of section two of the court's ruling Labour Twelve Circuit Bogotá.
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 Case PARTLY date fifteen (15) November two thousand and two (2002), issued by the Labour Division of the Superior Court Judicial District of Bogotá, in the case brought by Mary POMBO DE JOSÉ MADERO LORENZANA against companies promoting RECREATION ANDINA SA and PEÑALISA DE ENTRE RIOS SA, overturned the conviction as compensation imposed moratorium. No house in the rest. In place of analysis, confirmed the sentence imposed by the concept in letter f) of paragraph 2 of the Judgement of May 24, 2002 issued by the Labour Court Circuit Twelve Bogotá.
free in the special appeal.
Cópiese, report, publish and returns the case to the Tribunal.
VILLEGAS EDUARDO LÓPEZ
NADER ISAAC LUIS CARLOS OSORIO LOPEZ JAVIER
GERMÁN BELT TORO LUIS GONZALO G. SANCHEZ VALDES
ISAURA BOTERO VASQUEZ FERNANDO VARGAS DIAZ
MANOT MARGARITA GONZALEZ LAURA SECRETARY
Source: Supreme Court
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