In order to keep private companies and public institutions operating with the upmost efficiency, it is necessary for the employer to know the due process to effectively use disciplinary authority. Employers must prepare themselves and establish clear procedures that allow them to document the performance of all workers, so that when decisions have to be made, there is no risk of being questioned for alleged acts of some kind of discrimination before a Dismissal of the worker.

What is the dismissal?

It is the legal act through which the resolution of the employment contract is produced by the will of the employer. It will be justified, when it is the consequence of the exercise of the disciplinary power for breach of the contractual obligations of the worker. Articles 19, 71, 72 and 81 of the Labor Code regulate everything related to the obligations that correspond to the working party of the labor relationship, and the grounds that entitle the employer to proceed, if necessary, to a dismissal.

Procedure Prior to Dismissal

Within the Costa Rican labor regulations, the principle of contractual autonomy is contemplated, which prevails in the relations of Private Law, so it gives the employer the power to proceed with a dismissal, provided that with adherence to what is stipulated in article 85 subsection d) of the Labor Code, which regulates a dismissal with employer liability, or, as previously indicated a dismissal without employer liability. However, prior to a dismissal, the following exceptions should be considered:

A) If the company or institution has a special regulation, such as a policy or collective agreement that so establishes it, then the right of defense of the workers must be respected before establishing the sanction. And, in the presence of some kind of regulation, the established procedure must be complied with, to impose sanctions such as the suspension of the worker or even the dismissal, this due to the existence of due process.

B) In case of sexual harassment or workplace harassment, in addition to adhering to the corresponding regulations, companies internally must establish a procedure for their approach and carry out the corresponding investigation, prior to a possible dismissal.

C) It is mandatory to manage the dismissal before the General Directorate Inspection of Labor of workers with special privileges (pregnant woman, adolescent worker or union jurisdiction). It is worth saying that this dismissal will be valid only in the event of a serious offense, which is regulated in article 81 of the Labor Code.

D) In ​​the case of public institutions that do not operate in a regime similar to the private one, but develop an eminently public activity, the principle of stability in public employment is applied, which comes from articles 191 and 192 of the Constitution. For this type of employees, a procedure must be provided with all the guarantees of the General Law of Public Administration, or of the special laws applicable to each institution, prior to the suspension and dismissal sanctions. However, not every public employee will be governed by the General Law of Public Administration, everything will depend on whether or not there is a statutory and public management regime that performs, otherwise, the employment relationship will be governed under the regulations of the Labor Code.

Dismissal Causes

Unexcused absences: This is when the worker does not show up for work. For the cause of dismissal to be set, the absence of two consecutive days or more than two alternate days must occur within the same calendar month. Apart from what is established in the Labor Code in article 81, subsection g), a manual of internal labor policies or regulations is recommended, since it allows to regulate, within the workplace, a series of obligations, prohibitions and behaviors and their respective consequences.

Work abandonment: It must be understood that the abandonment of work is caused by the withdrawal of the worker from the workplace unjustifiably and without the employer’s permission; or the lack of performance of the contracted work without any reason. The abandonment of work requires that the worker has presented himself to work and that he/she unreasonably withdraws. And it is not a cause for dismissal if it occurs only once, but there must be some sanction for this behavior within an internal regulation in the company, and in case of absence the Labor Code regulates it in articles 72 subsection a) in concordance with 81 paragraph i).

Late Arrivals: Constant late arrivals harm workers. The punctuality of the workers is one of the points that is most considered when selecting personnel, or for the dismissal of these. This conduct is not regulated in the Labor Code, so to be able to apply a proportional sanction it must be contemplated in an Internal Labor regulation, and in turn, its relapse would become grounds for dismissal.

Loss of trust: When an employer feels that he cannot trust his worker anymore, objective loss of trust may cost the termination of the contractual relationship for the employee.

Failure to obey the employer’s orders: Failure to comply with the employer’s requirements becomes a cause for dismissal.

Procedures to be followed by the Employer

1. Check that the worker has committed a fault that merits the dismissal: Labor regulations establish a period of one month to dismiss the worker who has incurred in a fault from the commission of the facts, or since the employer was aware of them.
2. Seek advice: This will allow you to save a much greater expense both economically and in your valuable time by exposing yourself to being sued in judicial instance by not seeking proper legal advice especially at the time of its execution.
3. In the case of suspending a worker while determining if the fault entails a dismissal, the worker is entitled to a salary during the period of inactivity: It is considered as a substitute sanction of the dismissal to apply a suspension without payment of salary, and in agreement with the non bis in idem principle (no one can be punished twice for the same offense), this action will prevent the employer from terminating the employment relationship without employer liability.
4. Create reports and records of the fault and investigation: With the labor procedural reform, the employer has the burden of proof in a judicial process in labor matters; for this reason, it is recommended to issue the warnings in writing and have a receipt so that a precedent is recorded; and depending on the situation, witnesses who support the proceeding, so that it can be verified in case of the emergence of a labor claim.
5. In case of not being able to prove the fault, it is advisable to carry out the dismissal with employer liability: In the Labor Code, specifically in article 85 subsection d) it establishes that the employment relationships can be terminated by the employer’s will, without extinguishing the rights of the worker, which would avoid an administrative/judicial process.
6. Mandatory issuance of a letter of dismissal: You will always have to issue a letter of dismissal, and when it is without employer’s liability it must be justified and even indicating the evidence that supports the cause of dismissal, since it will be the only means of defense within an eventual judicial process, in accordance with the provisions of numerals 35 and 478 subsection 5) of the Labor Code.
7. Always issue the letter accompanied by a witness: To prevent employees from claiming that they were forced to receive the letter or that the employer physically or verbally assaulted them when the dismissal occurred, at the time of issuing the letter, be accompanied by another person who can testify, if necessary, what happened during the dismissal process.
8. In the event that the worker refuses to receive the letter of dismissal, it must be issued to the MTSS: When the employee does not want to accept the letter of dismissal, the employer must present it to the nearest office of the Ministry of Labor and Social Security, or else he/she must send it via certified mail within ten calendar days following the dismissal.
9. Have the authorization of the National Directorate of Inspection of the MTSS if you are going to fire a person covered by a special protection jurisdiction: You must comply with a due process established to fire workers to whom the law gives such special protection such as: pregnant or breastfeeding women, union representatives, minors and sexual harassment complainants, in addition, you must go to the National Inspection Directorate to manage the dismissal, since it is only allowed for certain causes and properly tested.
10. Liquidate all of employer rights at the time of dismissal: It is best to pay all employer rights on the last day of their employment relationship; in practice, one month is set as the maximum time for payment; However, because these are inalienable rights, the worker is not obliged to accept being paid later or in tracts.

It is important to know the correct procedure when deciding something as important as the dismissal of a collaborator of your company, seeking appropriate legal advice in advance will save you time and money to not end up in a tedious and more expensive litigation.

At ERP Lawyers we have a team of professionals in labor law willing to provide the advice and support required in these type of processes.

Contact us today to receive ethical and responsible labor law advice