Labour Chamber Xerox severally condemned to pay compensation to a woman since 1996 dismissal but did not respond directly to her. Two of the three maids voted for the application of art. 29 of the LCT. In dialogue with labor lawyer Guillermo DiarioJudicial.com Pajoni said that "Articles 29 and 30 in place of TBI, in essence, is the [governing] the military dictatorship and, in essence, were not modified."
La Sala VI of the House of Labor, in a split decision, jointly condemned the terms of art. 29 of the Labor Contract Law (LCT) firms Xerox Argentina ICSA and Real Time Consultants SA for the dismissal of an employee. The court held that Xerox's attitude "was a fraud on the law aimed to conceal their real quality and unique employer."
Liliana La Cava joined Xerox in 1982 and made work of meter reading. Then, from 1996, the company "outsourced" their collection service and the woman went to work in this sector.
La Cava has signed a contract for the transfer of personnel by which the yield to Cider Xerox SA and its age was recognized. Five years later, in 2001, she went on to provide the same service but under the aegis of Real Time Consultants SA
"Unfortunately [Outsourcing] is a common phenomenon and, with few exceptions, this is fraud. [But] the problem is not to outsource, the problem is that it fraudulently. Outsourcing is a more serious than it believes, "the lawyer said Guillermo Pajoni, president of the Association of Labour Lawyers, DiarioJudicial.com consulted.
Pajoni said that "Articles 29 and 30 in place of TBI, in essence, is the [governing] the military dictatorship and, in essence, were not modified." The holder of the Employment Lawyers Association found that the law should be amended to charge the whole chain employers who benefit from the work of these people. Arguments
"An analysis of the evidence presented in the case show that the plaintiff always kept his work inserted in the business organization of the defendant Xerox, in its establishment and to fulfill its purpose, so I understand that the conduct by that defendant, who carried out a supply of staff for Cider SA and subsequent interposition of people, including Real Time Consultants SA, constituted a fraud on the law aimed to conceal their real quality and only employer since joining in 1982 until the distractors occurred on 30 March 2006 ", the judge said Juan Carlos Fernández Madrid.
Meanwhile, Judge Graciela Gonzalez, who joined Madrid Fernandez's proposal to frame the case in the context of art. 29 of the LCT, postulated that it was a case of "intermediation survivor."
"While acknowledging that art. 29 LCT first paragraph refers to the maneuver is verified from the time of hiring, I think that that fact would not prevent the budget interpret factual referring to the rule in question could also be extended to events like that verified in the case where the fraud operation was carried out after recruitment, on the basis of a contract initially transparent and regular, then transform and adapt to a completely abnormal situation in clear violation of the rules governing labor relations by hiding the reality of what happened, "she added Judge.
For his part, Judge Beatriz Fontana said "Xerox is jointly liable under the terms of art. 30, LCT. "
At the same time, judges Fernández Madrid, Gonzalez and Fontana agreed in rejecting the tort of La Cava referred to the declaration of unconstitutionality of the applicable statutory cap. "In line with the approach of the sentence issued by the Supreme Court in the case 'Vizotti', it is to combine the legislative purpose of imposing a cap on compensation by applying a pattern-address the glaring disproportion between the worker's income and the basis for calculating compensation "safeguard the constitutional protection against arbitrary dismissal," said the judge whose pose Fontana joining the other judges.
Last July, the House approved the ruling Labour plenary "Vasquez, Maria Laura c / Telefónica de Argentina SA and other s / dismissal" which stated that "when according to the first paragraph of article LCT 29 provides that the employee has been employed directly by the company using its services, appropriate compensation under Article 8 of Law 24,013 although the employment contract has been entered only by the intermediary company. "
At that time, the judge Fernández Madrid majority voted with 10 other judges (including Beatriz Fontana) and Judge Gonzalez held the minority opinion, along with 7 other maids.
http://www.diariojudicial.com/contenidos/2010/12/27/noticia_0008.html
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