Article 81, subsection g of the Labor Code establishes the right of the employer to terminate the employment relationship without employer liability when the worker is unjustifiably absent from work for two consecutive days or more than two alternate days within the same month. The norm mentioned above states the following:
"g) When the worker fails to attend work without permission from the employer, without just cause for two consecutive days or for more than two alternate days within the same calendar month."
Due to the preceding, the worker must communicate to his employer the reason that justifies his absence from work irrefutably and on time.
The Second Chamber of the Supreme Court of Justice has established that being absent from work is a breach of mere verification. Due to the above, from the second consecutive day that the person is absent from work, the employer could terminate the employment relationship, which implies that the worker would have an obligation to justify his absence from work. Therefore, if the worker is absent for two days unjustified and consecutively, the employer has the power to proceed with the dismissal without liability. Based on this criterion, a minimum of two days is taken to justify absences from work. Concerning the preceding, the Second Chamber indicates:
"On the subject of absences from work, both this Chamber and the Constitutional Court have ruled that these constitute faults that are merely verified by the employer and that, if the absent worker wants to weaken the consequences of his absence, due to the imperative of the principle of good faith and the duty of minimum consideration, inherent in any employment contract, must proceed, immediately, to inform the employer, the reasons that would have validly justified his absence.
There is talk of a term of at least two days, given that in accordance with article 81, paragraph g), of the Code of the matter, absence from the workplace without permission of the employer and in an unjustified manner is cause for dismissal so that the absence in those terms gives rise immediately to the employer the legitimate interest to proceed accordingly. If, according to the norm, the absence as indicated is sufficient for the reason for dismissal to be given, implicit there is the duty to prove the factual issues that exclude the fault before it can be considered configured and before the effects that legitimize the employer to act in defense of his rights are produced" (Second Chamber of the Supreme Court of Justice, number 315-2001 at 10:40 am on June 8, 2001).
On the other hand, the Ministry of Labor and Social Security has established the obligations that the worker must comply with when absent from work:
"The preceding, of course, in the event that he has notified of the impediment that prevented him to report to work the same day that the event occurred or when the absence has been limited to less than two days, and he has not been able to notify. If this is not the case, the employer has complete freedom to proceed with the immediate dismissal —after two days of unjustified absence— corresponding to the worker only the recognition of proportional vacations and Christmas bonus...
What must be clear is that the worker is the one who is obliged to notify the temporary disabilities in the shortest possible time because if he does not do so, the employer cannot guess that his absences are justified, that is, that the dismissal carried out by this reason is justified in the absences by applying subparagraph g) of article 81 of the Labor Code.
Therefore, unless the worker's health impediment makes it impossible, the worker must notify the employer of the reason for his absence the very day he does not show up for work. This notice may be made by any means, including through a family member or friend, since the important thing is to inform the employer that it is a justified absence and thus avoid a possible dismissal without employer responsibility" (DAJ-AE- 146-12).
Therefore, it is essential to establish that the worker has two obligations in case of absence. The first is to give notice and indicate to the employer why he will be absent so that the employer can take the corresponding provisions. This communication can be provided by any means and must be sent as immediately as possible.
If the worker has complied with the first requirement, the second obligation is to deliver the document that certifies the impediment he could not report to work once he returns to the work center.
Despite the preceding, the employer may provide a longer-term or a different means of communication through an internal regulation, which, if it is done, must be communicated to the worker. What is essential before a judicial claim is that the employee knows these details and that it is possible to demonstrate that he was informed about them.
However, although the jurisprudence has interpreted that the worker must justify his absence in the first two days, the Second Chamber of the Supreme Court of Justice has also indicated that there are exceptional cases in which the worker is prevented from communicating with his employer:
"Therefore, the correct interpretation must be that in such exceptional cases, the term to justify the absence is computed from the time the worker is in the effective possibility of personally fulfilling that duty, or, at least, of requesting a family member or known person to do so" (Resolution 182-2001 of the Second Chamber of the Supreme Court of Justice at 10:20 am on March 23, 2001).
Consequently, there are exceptional cases where the term to justify an absence must be extended until the worker can effectively fulfill the said obligation. On the other hand, when a family member or acquaintance informs the company of the reason that prevents the worker from coming to work, the employee could not be sanctioned unless the latter finally does not deliver the certificate or document that proves said impediment, once he returns to work.
On the other hand, when the worker has been absent unjustifiably for long periods, the dismissal without employer responsibility must be based on the absences that have not expired, according to the date of application of the dismissal.
In this sense, under article 414 of the Labor Code, the employer has one month to apply the corresponding disciplinary sanctions for the breaches committed by the workers. Therefore, the company would have a period of one month to sanction the worker's absences once the period to justify them expires.
Is it possible to dismiss a worker without employer liability for a single unjustified absence?
Following subparagraph g of article 81 of the Labor Code, initially described, it is possible to establish that, in general, a single unjustified absence does not legitimize the application of a dismissal without employer responsibility since at least two absences are needed. Likewise, it is essential to mention that not every fault attributable to the worker is severe enough to justify the application of the maximum disciplinary sanction.
However, exceptionally, a single unjustified absence that has caused a severe affectation to the employer could constitute a breach that allows the application of a dismissal without employer responsibility, under subsection l of article 81 of the Labor Code, which refers to a generical "serious misconduct" of the obligations arising from the employment contract.
In this sense, based on the jurisprudence of the Second Chamber of the Supreme Court of Justice, to invoke serious misconduct or fault as a basis for the application of a dismissal without employer responsibility, the company must necessarily demonstrate the significance of the breach and the damage that the non-compliance caused, to accredit the seriousness of the non-compliance and the necessary proportionality between said fault and the sanction.
Therefore, to assess whether the application of a dismissal without employer liability for a single unjustified absence is appropriate, it would be necessary to examine, in each specific case, the seriousness of the breach and the damage caused, whether direct (for example, of a patrimonial nature) or potential (for example, damage to the company's image). Said aspects, like any other circumstance that evidence the breach's importance, must be duly proven later in court if the worker files a lawsuit in which he alleges that his dismissal was disproportionate and unjustified.
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