Article 478 of the Labor Code establishes the obligation of the employer to prove and demonstrate the reasons that led to the dismissal of a worker. In addition, it indicates that these must be justified, reasonable, and covered by the labor regulatory framework.

Under numeral 479 of the Labor Code, “any evidence may be offered that serves the conviction of the court, admissible in public and common law, provided that it is not expressly prohibited or contrary to public order or morals. ”.

The foregoing means that in labor matter in which the origin of dismissal is discussed, there is probationary freedom for the parties to prove the facts and arguments alleged, this by any means of proof that they consider pertinent, as long as they do not contravene the limitations indicated in said article.

Today, messaging platforms and other social networks have become prevalent and efficient tools for communication. Possibly the most popular among them all is the WhatsApp application. Through this messaging platform, messages are sent and received, and calls are made almost instantly via the Internet.

At first glance, WhatsApp messages, whether text or multimedia (photographs, videos, or audio), could be an easily admissible piece of evidence in a process in which the grounds for dismissal are discussed. However, there are several restrictions for their admission, mainly due to how these messages are obtained; In addition, there are other limitations linked to the right to privacy of each person and the inviolability of communications.

WhatsApp is a messaging system available for cell phones and even computers; such devices are generally for personal use. That same intimate character would encompass said communication tool. The content included there is also private. It is up to each owner (both of the electronic device and the information contained therein) to determine which people they can access. This right is supported in Article 24 of the Political Constitution and Article 11 of the American Convention on Human Rights.

Under the preceding, the employer who wishes to substantiate the dismissal of a worker through WhatsApp messages will necessarily require that the obtaining of said files be lawful without violating the rights mentioned above. How would that be possible?

The Second Chamber of the Supreme Court of Justice, by voting 2018-000776 at 9:30 a.m. on May 16, 2018, sheds light on the issue and indicates some factors to take into account so that it is possible to use these messages as a means of admissible evidence:

1- That the WhatsApp conversation is exposed on a cell phone or computer owned by the employer, whose use must be merely for work, and which in turn is not for the exclusive use of the worker

It is increasingly common for the employer to provide employees with tools to carry out their functions; these include technological gadgets. These are not always for the exclusive use of the worker but can be used by other people.

The preceding would imply that whoever sends the messages is aware that the technological device can be used by third parties unrelated to the conversation held through the messaging platform. Thus, it would no longer be a personal and private cell phone or computer.

2- That the employer has access to the messages through the recipient of these

In this case, the sender is expressly aware that the recipient has had access to the message since he received it. However, he cannot control or limit the recipient as to the people to whom he shows or forwards such information.

Depending on the circumstances that led to the dismissal, the recipient of the message could be a worker affected by the content of the communication; in this way, it would be quite feasible to obtain the information through it. For this, the recipient of the message must explicitly authorize the use of the data that was sent to him.

3- The recipient and the sender of the message must meet to determine the veracity of the information provided

In case of acceptance by the commission of the offense that entails dismissal by the worker who sends the message, the admission of the facts must be recorded in writing or, failing that, have witnesses who personally hear said admission of guilt.

If the worker later files a labor claim, but there is already an admission of the facts, it would be up to him to show that he did not send the message or that there was some manipulation or error in the delivery. The obligation to prove the actions would no longer be the employer, but the employee, since the employer would already have an admission of the fault by the worker.

4- That the sender of the message himself sends the messages to the employer or gives him the approval and express authorization to access and observe the information

Although this scenario is unlikely, it may happen that when conducting an internal investigation to clarify the facts and determine the sanction to impose, the worker consents to access the messages he sent; Another option is that, within the judicial process, the worker, together with his claim for unjustified dismissal, contributes WhatsApp messages that harm him.

Now, it is convenient to answer the following question: what happens to messages sent to WhatsApp groups and not specifically to people?

This messaging platform allows you to create groups. To enter the group members, it is enough for the administrator to include the contacts. Likewise, the only requirements are to have the application installed, the telephone number of the people, and access to the Internet.

Incorporating a contact to a certain group does not go unnoticed by the person in question since the application immediately sends him a message that the administrator incorporated him into the group. It is even possible to observe the photo, the name, and the telephone number of the person who administers and the members of the group.

Therefore, any content, message, or recording shared in the group can be used by any of its members.

Even though it is the private and confidential sphere of the group members, if one of the members disseminated the information and allowed access to it voluntarily, it cannot be considered a violation of the right to privacy and the inviolability of the communications.

It is important to indicate that if the employer does not have the information or could not obtain the WhatsApp messages in the terms mentioned above, there is the possibility of requesting a court order from the labor judge in which he orders the required information to be provided. And thus be able to legally introduce the messages of interest to the judicial process. In this way, it will be possible to have all the necessary evidential elements to guarantee the search for the real truth of the process, a principle protected in numeral 476 of the Labor Code.

At Bufete Godínez y Asociados, we specialize in counseling and advising employers in labor and employment law. If you need any additional information, do not hesitate to contact us by clicking here.


About the Autor

Francisco Javier Bolaños Ulate

Francisco Javier Bolaños Ulate

Email: [email protected]
Phones +506 2289-5052 | +506 2282-2164 | +506 2289-5275
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