Citas bibligráficas
Vargas, A., (2022). Informe Jurídico sobre la sentencia de vista recaída en el Expediente No. 5288-2020-0-1801-JR-LA-14 [Pontificia Universidad Católica del Perú]. http://hdl.handle.net/20.500.12404/23044
Vargas, A., Informe Jurídico sobre la sentencia de vista recaída en el Expediente No. 5288-2020-0-1801-JR-LA-14 []. PE: Pontificia Universidad Católica del Perú; 2022. http://hdl.handle.net/20.500.12404/23044
@misc{renati/527964,
title = "Informe Jurídico sobre la sentencia de vista recaída en el Expediente No. 5288-2020-0-1801-JR-LA-14",
author = "Vargas Tamariz, Alejandra Alida",
publisher = "Pontificia Universidad Católica del Perú",
year = "2022"
}
The purpose of this research work is to analyze the exercise of the right of resistance of a worker regarding his absences at the workplace for fear of contagion by Covid-19 during the first months of the pandemic in the country. In view of this, it was determined that the fact that the company does not foresee the psychosocial risks related to the pandemic enables the worker to exercise his right of resistance in a context in which there were no vaccines or the obligation of the employer to practice the dismissal test to all its workers. All this considering the ruling in case No. 5288-2020-0-1801-JR-LA-14. Considering the above, the investigation concludes that the sanction imposed by the employer, i.e., dismissal, did not respect the principles of proportionality and reasonableness. Likewise, it determines that the serious misconduct contained in article 25 paragraph h) of the Labor Productivity and Competitiveness Law (hereinafter, “LPCL“) did not occur, since the employee justified his absences by means of the letter in which he communicated his decision to exercise his right to resist. Finally, it concludes that the employer's conduct and the facts of the case indicate the existence of a fraudulent dismissal. For such purposes, the pronouncements of the Constitutional Court, the Supreme Court of Justice of the Republic, as well as the Labor Productivity and Competitiveness Law and comparative doctrine will be taken into consideration.
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