It is the employers’ responsibility to ensure that their workers do not remain in the labor center after their time of departure, as this will be presumed that such permanence has been agreed with the employer and these hours worked beyond the usual hours must be remunerated as work in overtime.
This criterion has been established by the Supreme Court in Case No. 1196-2016 Lima, published in the official newspaper El Peruano, May 30, 2017.
Case background: a worker filed a claim requesting the payment of overtime and its incidence in compensation for time of services, gratuities and vacations.
In the first instance, the complaint was declared founded because, from the review of the attendance reports, it would have been verified that the applicant performed work outside the working hours. In the second instance, the claim was declared unfounded after considering that the reports of attendance do not constitute sufficient evidence to prove that the actor remained in the workplace and that they were of profit or utility for the benefit of the defendant; that the delay in departure cannot be presumed to be effective work, even if the comprehensive assistance report reflects a departure in hours greater than the agreed day and that there is no means of proof referred to the overtime agreement nor an express of the defendant for the actor to carry out such work.
By not agreeing with this decision, the plaintiff appealed, inter alia, for non-compliance with article 7 of Supreme Decree No. 004-2006-TR.
In this regard, before resolving the case, the Court determined that work in overtime can be done with the express or implied authorization of the employer. However, if the authorization is tacit, the mere fact that the worker proves to have stayed to work beyond the time of leaving the work center, generates the presumption that he has performed work in overtime with authorization from the employer, corresponding to the latter the burden of proving that the worker remained on the premises of the company for any reason other than to perform additional work.
In that sense, according to the Supreme Court, the plaintiff would have complied with providing sufficient evidence that he demonstrated that he worked outside the working day established by the defendant employer, proving that the workers’ entry and exit records are adequate evidence. Likewise, such evidence was not dismissed by the defendant with others that detract from its probative value.
For these reasons, the Supreme Court declared the cassation appeal by the plaintiff well founded.