Despite the custom of decades and its internal rules, the Ministry of Housing and Buildings (Mived) will have to stop applying he labor law common to regulate the relationship with its collaborators and begin to be governed by the Law on Public Service (41-08).
This error meant a significant sacrifice of public resources, because the National Housing Institute (INVI) paid severance pay to most of its employees in 2022 when it became a ministry.
A former employee sued the entity for payment of benefits labor in 2016 and obtained several rulings in his favor that ordered him to pay close to 4.5 million pesos as a result of a calculation made in accordance with the Labor Code which included layoff, notice, vacations, Christmas salary, job achievement and compensation for the delay.
If the Public Service Law is applied, the plaintiff would receive an amount significantly lower, because the Public Service Law establishes a maximum payment of 18 monthly salaries which, if applicable, would total 810,000 pesos.
The institution appealed the ruling of the Labor Court of the National District before the Labor court and then the Supreme Court of Justicebut lost both times.
He then brought the case before the Constitutional Court (TC), which decided to analyze the legal background of the matter and identified a inherited irregularity since the previous INVI.
The authorities of the INVI They decided administratively to operate under the Labor Law, which is why when it became the Mived they decided provide advance notice and pay labor benefits to its entire staff to enter the public regime starting in 2022.
Those hired the previous year remained under the private labor legislation “to safeguard acquired rights”, as provided by a joint resolution of the Ministries of Labor and Public Administration.
What he says Labor Code
However, the Principle III of the Labor Code indicates that its rules do not apply to public officials and employeesunless otherwise provided in the special statutes applicable to them and “workers who provide services in State companies and in their official autonomous bodies of an industrial, commercial, financial or transportation nature.”
The TC determined that relying on internal regulations that were contrary to this provision of law violated the principle of normative hierarchywhich gives supremacy to laws on administrative acts, and annulled the latest ruling of the SCJ.
“The conclusion reached by the court of cassation contradicts the principle of normative hierarchyby attempting to make the application of a law subject to the provisions of an administrative act, thus breaking with the regularity of the law. stepped structure of the legal system,” noted the constitutional judges.
He recalled that the contentious administrative jurisdiction is competent to know and resolve conflicts that arise between the public administration and its civil servants and employees, so their cases must be known by the Superior Administrative Court (TSA).
This particular case will return to the Supreme Court, where it could take several years to will be added to the 10 that already has the judicial litigation.
