60.
The Chamber issued the following conclusion:
It does not seem unreasonable to think that the aforementioned detention of the plaintiff,
and the unlawful protraction thereof (…) without being subjected to any trial proceeding,
and without there being any proof of any disciplinary liability, constitutes a case of force
majeure that justifies her failure to provide services and the payment of unearned income [to
her]; (…) and those circumstances (…) lead to consider as fulfilled (…) the situation of
exception set forth in resolution 5/77 and in the doctrine of the Supreme Court of Justice
invoked in the appealed judgment. (…) The proposed solution is consistent with
constitutional principles and protections (…) taking into account that a strict and objective
application of the provisions of the law would lead to inequitable results.93
61.
Consequently, the Chamber recognized the right of Mrs. Perrone to collect her lost
earnings.94 The Chamber held that, notwithstanding, it was not admissible to adjust her position on the
seniority roster or the benefits for periods of regular leave she was unable to use.95
62.
On October 15, 1993, the DGI filed an appeal with the Supreme Court against the judgment
issued by Appeals Chamber.96 The DGI alleged that the criterion of force majeure does not apply to the instant
case.97 It contended that “the plaintiff did not show up to work because she was arrested at the disposal of
the National Executive Branch, a circumstance totally unconnected to the agency.”98
63.
On May 21, 1996, the Supreme Court of Justice of the Nation issued a judgment granting the
appeal of the DGI and reversing the judgment of the Chamber of Appeals.99 The Supreme Court wrote the
following in its holding:
4. (…) the plaintiff did not show up for work for reasons unconnected to her will for almost
six years; during that period of time, the employer did not order the termination of the
relationship of public employment, which remained in effect without payment of wages.
5. The particularities of the case make it impossible to equate the case –suspension of the
agent without collecting wages for reasons of deprivation of liberty caused by events out of
the control of the public administration- with the rules of breach of relationship of public
employment for justifiable absences. Both the legal framework provided by collective
agreement 46/75E (…) clearly distinguish the investigation procedure to determine
disciplinary responsibility, from the rules on leaves of absence and from the [procedure] for
absences, without prejudice to a violation of the latter two triggering the first one.
6. It is not possible then, to formulate analogies based on the rules of exemptions and leaves
of absence, but rather by applying the provisions pertaining to the disciplinary procedure or,
as the case may be, by filling in the gaps with its principles.
93
Judgment of the Chamber of Appeals, September 21, 1983. Judicial proceedings. Annex to initial petition on Elba Clotilde
94
Judgment of the Chamber of Appeals, September 21, 1983. Judicial proceedings. Annex to initial petition on Elba Clotilde
95
Judgment of the Chamber of Appeals, September 21, 1983. Judicial proceedings. Annex to initial petition on Elba Clotilde
96
Leave to appeal before the Supreme Court, October 15, 1993. Judicial proceedings. Annex to initial petition on Elba Clotilde.
97
Leave to appeal before the Supreme Court, October 15, 1993. Judicial proceedings. Annex to initial petition on Elba Clotilde.
98
Leave to appeal before the Supreme Court, October 15, 1993. Judicial proceedings. Annex to initial petition on Elba Clotilde.
99
Judgment of the Supreme Court of Justice of the Nation, May 21, 1996. Judicial proceedings. Annex to initial petition on Elba
Perrone.
Perrone.
Perrone.
Clotilde.
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