JURISPRUDENCE. HAVE GUIDELINES FOR EMPLOYERS.
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| Accurate application of non bis in idem in a dismissal process |
This principle prevents punishment twice for the same offense
Carlos Cardenas (Lawyer)
The Constitutional Tribunal (TC) recently issued the sentence handed down in the No. Exp 05172-2009-PA/TC, regarding the prohibition of double punishment in the workplace, within the regulated dismissal procedure the TUO of the Law of Productivity and Competitiveness. This ban (known as non bis in idem) is one way of ensuring that employers must meet before a dismissal procedure, together with that of legality, proportionality and immediacy.
In this case, the employee was suspended from work for 30 days without pay in 2005, when an irregular removal of materials from the employer. Then in 2008 the same worker was fired, when the Criminal Chamber of the Court upheld the conviction Piura workers to three years in prison, as co-author of the crime of aggravated robbery, to the detriment of his employer. By raising his claim, the employee argued that this represented a double penalty (first with a work stoppage, and after the dismissal) and the same event.
regard, the TC said that even if the facts are basically the same, the basis or nature of the penalties are different, so that dismissal is appropriate. In the case of analysis, even when presented identity of subjects and facts, this did not happen in the case of the fundamentals, then the suspension was based on the failure of the work of the worker (irregular removal of materials from storage), while that the dismissal was based on the commission of an intentional crime (co-author of aggravated robbery), being therefore different grounds in the application of both.
In conclusion, it is important that the TC ratify the non bis in idem is a principle that is fully applicable in the workplace, be advisable to check their compliance should be necessary to impose disciplinary sanctions to the same number of workers made similar.
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