It is relevant to know that there are justified causes for dismissal to be applied to employees by employers in private institutions. These causes, established in article 81 of the Costa Rican Labor Code, authorize the employer to terminate the employment relationship without liability, that is: with no obligation to pay the employee any dismissal notice period or severance.
Being late is not manifestly contemplated as a justifiable cause for dismissal, and if the employee is late only once, the employer cannot claim this as a cause to justifiably terminate that employment. However, repeatedly tardiness without explanation could be considered as gross misconduct in the workplace; as it consequently suggests lack of responsibility and commitment from the employee.
It must be mentioned that the aforestated article 81 of the Costa Rican Labor Code, does establish a general cause of dismissal as: “any gross misconduct to the obligations imposed by the employment contract”.
Labor Courts have as well accepted lateness as a cause for justified termination, under the previously stated article 81’s subparagraph, as long as the situation meets the following requirements:
– Employee-Employer good faith shall guide and rule any specific case analysis.
– The worker must be formally notified/warned in writing every time that he/she is late.
– Late arrivals must be counted and warned at the end of every calendar month.
Likewise, the Ministry of Labor in conjunction with our Social Security Institution CCSS, has established concerted views for these types of cases. Legal labor criteria number DAJ-AE-219-2008 of their Legal Directorate has established the following:
“In order to discipline employee lateness, quantitative significance must be taken into consideration. The number of infringements that is, because when you are dealing with a minor infraction such as this, it would necessarily require its recurrence, or the repetition of other similar offenses, to acquire the severity prescribed by law to justify the severe act of dismissal. In the absence of Internal Work Regulations, you can fire the worker who has accumulated more than six late arrivals in three consecutive months, if as a consequence of the first two he/she has been penalized for it, cautioning him/her to amend this behavior. “
As you can see, it is of vital importance to analyze each individual case and its reiteration throughout the employment relationship in order to determine if a dismissal could be considered justified or unjustified.