PERU Law and Practice Contributed by: Alvaro Echeandía, Alfred Kossuth Wieland, Pilar Santillán Meza and Rodrigo Varillas Cueto, Thorne, Echeandia & Lema Abogados
Individual Dismissals The individual dismissal of a worker who has exceeded the trial period and works four or more hours daily on average may only proceed if there is a justified cause related to conduct or capacity as contemplated by law and duly verified. To carry out a disciplinary dismissal for serious misconduct, the employer must send the worker a letter of “prior notice” of dismissal, specifically stating the fault committed, informing the legal basis, explaining the facts and means of proof that substantiate the commission of the infrac - tion, and granting a period of no less than six cal - endar days for the worker to present a defence in writing in the case of serious misconduct related to work conduct, and 30 calendar days in the case of misconduct related to capacity. Dismissal without cause or that cannot be prov - en in the process leads to an indemnity pay - ment for arbitrary dismissal. Workers who have exceeded the trial period established by law and work for four or more hours daily on average are entitled to an indemnity payment for arbi - trary dismissal. For indefinite-term contracts, the indemnity amounts to 1.5 remunerations per complete year of service up to 12 remunerations, and for fixed-term contracts, 1.5 remunerations for every month remaining until the contract’s expiry date. In cases of null, unjustified, and fraudulent dis - missals, workers may apply to the courts for reinstatement in their jobs and be compensated for the damages caused as a result of the dis - missal. 4.5 Employee Representations Membership of trade unions by workers is optional. Workers have the fundamental right to freedom of association. This right allows workers
to organise without the need to seek authorisa - tion from anyone, in order to promote, protect and develop their rights and interests. Trade unions must meet a series of formal requirements for registration and must also be made up of at least 20 workers. For trade union organisations to achieve their objectives of pro - moting the rights of their members, they use the
following mechanisms. Collective Bargaining
It is the good faith negotiation of the employer and the union whose objective is to reach a col - lective agreement that implies benefits for both parties, among them are improvements in work - ing conditions, economic benefits, productivity
goals, among others. Collective Accords
Collective accords the products of collective bargaining and constitute a source of rights for the parties. Their minimum duration is one year, however, the parties may agree on the duration they deem appropriate. In the event of non-com - pliance with the collective agreement, workers may choose to use administrative remedies or exercise the right to strike. Strike A strike is a labour right that involves the col - lective suspension of work agreed upon by the majority and carried out voluntarily and peace - fully by the workers, with abandonment of the workplace. In order to exercise this right, work - ers must meet a series of requirements, includ - ing prior notification to the employer and the Administrative Labour Authority.
648 CHAMBERS.COM
Powered by FlippingBook