On August 29, 2023, the Labor Inspection Court, by Resolution No. 830-2023-SUNAFIL/TFL-First Chamber, determined that vacation breaks not properly granted constitute an irremediable infraction, thus the payment of vacation compensation is not sufficient to rectify the infraction.
Conversely, this criterion contradicts the one set forth in Superintendence Resolution No. 167-2019-SUNAFIL, established by the Committee of Criteria in legal matters of said agency, which establishes that employers can correct social and labor infractions.
Background
In this case, a Sunafil inspector proposed to fine an employer because the latter did not pay or grant vacations to a female worker. Likewise, this did not provide documents evidencing the payment of vacation compensation claimed to be paid.
Consequently, the Resolution Subintendence of the Regional Government of Cusco determined that the employer had committed a very serious infraction for not paying or granting the corresponding vacations, according to Article 25.6 of the Regulations of Law 28806, General Law of Labor Inspection, as well as another very serious infraction for not filing documents certifying an alleged compensation payment for vacations, as established in Article 46.7 of the Regulations of the General Law of Labor Inspection.
After being fined, the employer filed an appeal, supporting its position with a Whatsapp conversation with the worker, in which the latter acknowledged that she did not have pending vacation leave to enjoy. Conversely, the Regional Government of Cusco declared the appeal unfounded because the employer did not comply with the accreditation of pay leave of vacation according to the regulations (with a settlement sheet reporting the concepts paid period by period or with the record in the payroll book).
Given this, the company filed an appeal for review, alleging that, despite the failure to comply with the formalities of filing a settlement sheet or payroll register, this did pay for the worker’s vacations.
Court’s Criteria
The Labor Inspection Court argues that if an employee did not enjoy his/her vacation leave in the immediately following year after acquiring the right, an irremediable violation is configured. Therefore, the payment of the vacation remuneration and the vacation compensation does not remedy the infraction, and the company may be sanctioned by Sunafil in case the inspection detects infractions.
In addition, according to the administrative body, the remuneration payment and/or compensation for vacation leave rectifies the infraction for failure to grant vacation leave does not comply with our legal system for two main reasons:
- It establishes an unjustified equating of two legal issues: The economic concepts paid in the employment relationship and the working time.
- Such interpretation contradicts the provisions of Article 49 of the Regulations of the General Labor Inspection Law, given that the lack of vacation leave would be profitably compensated from such regulation, even if the compensation payment component of the vacation is still pending.
In the Court’s opinion, the inspector should not have required the employer to provide evidence of a compensation payment for vacation leave, given that this infraction could not be remedied. The inspector should only have required the remediable infractions and record the irremediable acts.
Consequently, the subintendence resolution (first instance) was annulled to issue a new resolution.