Suspension of the worker without salary as a substitute for dismissal without employer liability
The disciplinary suspension without salary is contained in article 68 clause e) of the Labor Code, in which it establishes the following: “Article 68.- The work regulations may include the technical and administrative rules necessary for the correct operation of the company; those related to hygiene and safety of work, as indications to prevent professional risks and instructions for providing first aid in case of accidents and in general, all others that are deemed convenient. In addition, it will contain: (…) e) The disciplinary provisions and the ways to apply them. It is understood that it is prohibited to deduct any amount from the salary of workers as a fine and that the suspension of work without pay, cannot be decreed for more than eight days or before having heard the interested party and the co-workers indicated by the affected worker; (…) “.
From the analysis of the previous article, along with the provisions of articles 66 and 67 of the same law, which regulate what refers to the Internal Labor Regulations, it is clear that, in Costa Rica, even though the disciplinary power that the employer has is recognized, It is limited in this matter, by restricting its action to the existence of an internal regulation, which must be previously approved by the Ministry of Labor and Social Security (MTSS in Spanish); however, Costa Rican jurisprudence has established that suspension of work without pay as substitute for dismissal without employer responsibility, implying that the sanctioned offense must be of equal gravity to a fault committed for dismissal without employer liability. The law defines a maximum of 8 days, in which, although the employment contract is suspended by the sanction, the worker accumulates seniority, maintaining the existence of the employment link, despite the suspensive condition of the contract.
The suspension as a disciplinary measure
It is important to stress that the suspension as a disciplinary measure should not be used lightly, because you can only resort to such a measure to sanction a fault that merits dismissal without employer responsibility, and provided that the corresponding procedure is carried out as we have already indicated.
Also, it is important to take into consideration that the sanction as a disciplinary measure is a “clean slate”; that is, imposing the suspension without pay, as a temporary measure, erases all the disciplinary history that the worker has accumulated during the employment relationship.
In addition, unless the company has internal work regulations, the employer cannot assign the suspension to specific offenses, other than those stipulated in Article 81 of the Labor Code, which details the serious offenses that justify dismissal without employer’s liability.
Referring to the sanction for suspension without pay as an alternative measure to dismissal without employer responsibility, it must be reserved for the most serious cases, and should not be seen as an intermediate sanction between a warning and dismissal; this is due to the implications of using this sanction for the employer and its employees, given the negative pecuniary impact it has on the worker, so it must be substantiated and executed in written form, safeguarding the right to defend both – employer and worker – before an eventual process or claim.