Employers have the power to the dismiss remote workers for abandonment of work, or to be absent without any justification, when they are performing the functions through said modality of teleworking; This was determined by the Second Chamber of the Supreme Court.

The continuous advance of digital technologies has pushed profound changes in all areas of modern society. These changes have occurred in the form, means and places where work can be done, since the increase shown by the country in connection, access and availability of terminal equipment such as smartphones, tablets, laptops and other devices. Those have allowed new working schemes supported by the use of digital technologies that are present in all public and private organizations, and independent workers.

Within this framework comes the figure of remote working, whereby seeks to support the processes of organizational modernization, the increase in productivity, the improvement in the quality of services, the reduction of costs, social inclusion, the balance between work and personal life, urban mobility and protection of the environment; however, figure that today in Costa Rica is not regularized – currently in Congress there is a bill (19,355) to regulate timely control of remote work, but it is in process.

Despite the above, employers have the faculty to dismiss teleworkers due to abandonment of duties or to be absent without any justification, during their working hours by means of this modality of telecommuting; this was determined by the Second Chamber of the Supreme Court in its resolution 539-2018, which was made public this Thursday by the Judiciary.

How did the employer justified the dismiss remote workers?

The labor process was initiated by the worker, who worked as an IT manger for a private company and was dismissed in 2014 because, although he was exercising his functions while working remotely, he was absent during working hours.

The plaintiff was in a position of trust with a flexible schedule, position in which an availability was required 24 hours a day. The worker argued that when he was not out of the country, he performed his functions under telecommuting, for which he used the company’s technological systems.

For that reason, he went to the Labor Court of Heredia, which gave him the right and sentenced the company to pay the labor means of dismissal, forewarning and damages. Subsequently, the Labor Court ratified the sentence; However, the defense of the employer raised the case to the Second Chamber and considered it pertinent that the evidence of the absences be assessed, which were recorded in the computer system entry records.       

“The Chamber Officials concluded that the entry to the platform was essential to comply with the job obligations performed by the plaintiff and in the reports it was evidenced that, during the months of December 2013 to January 2014, he did not connect within several days and in some cases the registration only determined a period that could add up to a couple of hours, but not a full day.” says the Court’s statement. For that reason, they gave the reason to the employer and justified the dismissal.

“Although the plaintiff was under the modality of telecommuting, this does not prevent the employer from exercising the power of direction proper to his position and due sanctions concerning a serious fault committed by the remote worker.” said the ruling.

The modality of telecommuting must not mean in any way a lack of control by the employer or an authorization for the worker to stop fulfilling the obligations for which he was hired. In this sense, we recommend establishing the conditions or parameters on how remote working is executed in your company, through policies that regulate it.

If you have doubts or look for advice regarding this issue or any other issue related to labor law, do not hesitate to contact us and one of our experts will gladly assist you. Get in touch!