Economic growth, which contributes to the well-being of people, depends to a large extent on consumption. And it is precisely consumption that defines the amount of jobs a company will provide: if consumption increases, then there will be more jobs available. However, if consumption declines, labor will also decline.
In spite of the fact that our economy has been growing steadily for the last 25 years, it seems that at certain points in time the State powers move in opposite directions: in fact, some move upwards, while others move downwards. This phenomenon occurs, for instance, in labor regulations because we have, on the one hand, several businesspeople and entrepreneurs who risk their capital to create wealth while, on the other hand, we see some courts issue resolutions to reinstate or redress dishonest or inefficient employees.
As a matter of fact, according to Inter-American Development Bank (IDB), Latin America shows the lowest levels of productivity and the underlying problem is the low competitiveness of Latin American employees (including Peruvian employees). Within this context, all State powers should move in the same direction and bet on productivity in order to boost consumption and, with it, create more jobs. As rightly stated by Milan Kundera: “How can a person with no knowledge of the future understand the meaning of the present?” Peru’s future depends on consumption, not on generating life-long jobs or paying inefficient employees. Some resolutions issued in relation to cassation appeals seem not to understand this matter.
Imagine that an employee steals something from your company (probably money) and then returns it. Would you continue trusting said employee? As stated in a resolution issued in connection with Cassation Appeal N° 419-2014-Ayacucho, said behavior is considered “good willful misconduct” and, therefore, the offense should be forgiven and if the employer still decides to dismiss the employee, then it will be obliged to pay him/her compensation in cash.
The paradox is that the Law regulates something different. As a matter of fact, item “c” of Article 25 of Supreme Decree Nº 003-97-TR (the famous 728) provides that serious offense is considered to mean: “c) A consummated or frustrated act of misappropriation of goods or services which belong to the employer or are under the custody of the employer, and the undue withholding and use thereof, for the employee’s own benefit or for the benefit of third parties, irrespective of their value”. The Law punishes acts of dishonesty, regardless of the value of the goods in question. The resolution commented above forgives an act of dishonesty. And what is even more counterproductive is that one of the elements used as a basis in order for the Cassation Appeal to be declared well-grounded is that the employer itself was the one which typified in its Internal Employment Regulations that the offense in question could give rise to the suspension, not to the dismissal, of the employee despite the fact that the Law classifies it as a serious offense. Our advice: if your company has made the same mistake, then rectify it on time preventing serious offenses from being typified as non–serious in your own Internal Employment Regulations.
Notwithstanding, this resolution does not set a binding precedent. Besides, the Law has a higher hierarchy than the resolution and, therefore, the Law is the one that regulates both the behavior of employers, as well as the resolutions issued by judges in the country.