Justified Dismissal for Lateness in Costa Rica

Justified Dismissal for Employee Lateness in Costa Rica

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In Costa Rica, under Article 81 of the Labor Code, repeated and unjustified lateness can be considered gross misconduct and may legally justify dismissal without severance or notice. A single late arrival does not qualify — but multiple documented infractions, combined with prior written warnings, can meet the legal threshold for termination.

Legal basis: Article 81’s general clause

Article 81 of the Costa Rican Labor Code lists the causes for dismissal without employer liability. While “lateness” is not named as its own specific ground, one of its general clauses allows dismissal for “gross misconduct against the obligations imposed by the employment contract.” Repeated, unjustified lateness is analyzed under this general clause rather than under a dedicated lateness provision — which is exactly why documentation and consistency matter so much in these cases.

When lateness becomes dismissible

Costa Rican courts and the Ministry of Labor (MTSS) have held that repeated, unjustified lateness can amount to gross misconduct when it meets several conditions together:

• it shows a lack of responsibility and commitment to the job;
• it occurs despite prior written warnings;
• it reaches a quantitatively significant threshold — not just an occasional slip.

None of these conditions alone is enough. An employee who is late once, or who receives no warning at all, has not crossed the legal line — and an employer who tolerates a pattern of lateness without objecting can lose the ability to rely on it later, since silence can be read as tacit acceptance of the behavior.

Official guidance: legal opinion DAJ-AE-219-2008

The clearest official reference point comes from legal opinion DAJ-AE-219-2008, part of the Ministry of Labor’s compendium of labor-law criteria. It clarifies that an employer may terminate without liability if the employee accumulates more than six late arrivals within three consecutive months, provided the first two infractions were formally sanctioned and the worker was warned in writing to correct the behavior.

This threshold is not a rigid formula that applies identically to every case — it is the reference the MTSS itself uses when evaluating whether a dismissal for lateness was properly grounded, particularly in workplaces without a formal Internal Work Regulation spelling out its own threshold.

Employer step-by-step

1. Document lateness: record every incident with exact date and time.
2. Issue written warnings: after each late arrival, deliver a formal written notification — not just a verbal comment.
3. Monthly summary: total the infractions at month’s end and share the count with the employee.
4. Progressive discipline: apply sanctions under the company’s Internal Work Regulations before moving to dismissal.
5. Dismissal decision: if the threshold is met and the behavior persists despite warnings and sanctions, proceed under Article 81.

Case-by-case analysis

Each situation must be evaluated individually. Relevant factors include the recurrence pattern, any justification the employee offers, the company’s internal policies, and the disciplinary history already on file. Two employees with the same raw count of late arrivals can land in very different legal positions depending on whether warnings were properly documented and whether the company acted consistently.

For employers and HR professionals: consulting with a Costa Rica labor lawyer before proceeding ensures compliance with both the procedural and substantive labor law requirements — the difference between a defensible dismissal and an expensive one often comes down to whether this groundwork was done correctly beforehand.

HR checklist before dismissal

How AG Legal helps

Nuestro servicio: AG Legal advises employers on disciplinary terminations and labor compliance in Costa Rica, including:

• Reviewing whether a lateness pattern meets the legal threshold before termination.
• Drafting termination letters that hold up under Article 81 and Article 82.
• Designing progressive discipline policies and Internal Work Regulations that set clear, documented thresholds.
• Advising on related disciplinary scenarios, including employee fraud investigations.

Frequently Asked Questions

Can I dismiss an employee in Costa Rica for being late?

Yes, but only if the lateness is repeated, unjustified, and documented with prior written warnings. A single incident is not sufficient.

What law regulates justified dismissal for lateness?

Article 81 of the Costa Rican Labor Code provides a general clause for dismissal without liability, which can include repeated lateness when it constitutes gross misconduct.

What is the lateness threshold for dismissal?

Legal opinion DAJ-AE-219-2008 indicates more than six late arrivals in three consecutive months, with prior sanctions and warnings, may justify dismissal.

Do the warnings need to be in writing?

Yes. A verbal comment is difficult to prove later. A defensible case relies on written warnings issued after each documented incident.

What happens if the employer never objected to the lateness before?

Tolerating a pattern without objection can be read as tacit acceptance of the behavior, which weakens the employer’s ability to rely on it as grounds for dismissal later.

Recommended reading

• ¿Se Puede Despedir a un Trabajador por Llegadas Tardías? (versión en español)
• Termination for Cause in Costa Rica
• Costa Rica Labor Laws: Employer Guide
• Employee Fraud Investigations in Costa Rica
• Costa Rica Severance Calculator

This article is for informational purposes only and does not constitute legal advice for any specific case. Always consult with a labor lawyer before proceeding with a disciplinary dismissal.