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21Sep

Can the worker watch a soccer game during his working day?

After the heroic qualification of Costa Rica to the Men's Soccer World Cup, which will take place in Qatar, great enthusiasm has been generated in the Costa Rican population to watch their team in said World Cup and even watch the other matches of the competition. It is an expected consequence in a country where the sport is a cause of social repercussions.

Due to the above, a large part of the fans have asked if they will be able to watch the World Cup matches during their working day (at least those of their national team) or if, on the contrary, they may be exposed to some sanction by their employer.

To address this query, the following scenarios are analyzed:

Firstly, if there is express and voluntary authorization from the employer for the worker to watch a match, the worker would not run any risk of being sanctioned or dismissed in that case.

In previous soccer World Cups, some employers in the private sector chose to authorize workers to observe the national team in the matches it was going to play. This situation was repeated this year with the playoff match against New Zealand.

It is necessary to take into consideration the time for which this authorization is granted since the rule has been that the permit includes only the duration of the game; that is, the worker must return to work immediately after the game is over. Similarly, workers must carry out their regular duties before the game begins without interruption.

It should be noted that the worker would not be exposed to any sanction if he watches the game during his break time and not during the working day.

However, if there is no authorization from the employer and the worker chooses to watch the game during his working day, the employee is exposed to a reprimand or sanction for abandoning work or, as it is popularly known, "job abandonment". This concept is defined in the following terms:

The abandonment of work, typically, occurs when the worker leaves the establishment where he performs his work; but, also, the abandonment can happen in the workplace and, in these circumstances, occurs when the worker stops performing the tasks that correspond to him and with which he must comply. Consequently, the abandonment of work is understood as the abandonment, during the working day, of the tasks covered by the contract without any cause that justifies it. It translates into malicious and guilty behavior; because it always entails the clear intention of abandoning the tasks which are being carried out; it may also consist of negligent passivity. (Carro Zúñiga, Carlos. The just causes of dismissal in the Labor Code and jurisprudence of Costa Rica. San José, Editorial Juritexto, first edition, 1992, pp. 53-55; quote contained in the sentences issued by Second Chamber number 886 at 10:20 a.m. on October 13, 2000, and number 2001-672 at 10:10 a.m. on November 9, 2001).

Job abandonment can be seen in two ways: on the one hand, when the worker physically moves away from the place where he provides his services; on the other hand when he does not leave his workplace but abandons the tasks assigned to him.

Therefore, even if the employee watched the game in his workplace, he would still incur in job abandonment since he would stop performing his duties to dedicate himself to another external action.

The abandonment of work is a prohibition described in article 72 of the Labor Code, which indicates the following of interest:

ARTICLE 72.- "Workers are absolutely prohibited from:
a. Leaving work during working hours without just cause or without the employer's license; (…)".

The norm already cited indicates that the infraction of this prohibition will be sanctioned only in the manner provided for in subparagraph i) of article 81 of the Labor Code, which warns:

ARTICLE 81.- There are just causes that empower the employer to terminate the employment contract: (...)
i) When the worker, after the employer warns him once, incurs the grounds provided for in subparagraphs a), b), c), d) and e) of article 72; (…)".

Due to the preceding, and as a thesis of principle, watching a football game during the working day constitutes an abandonment of work that the employer can sanction with a pure and simple reprimand, different from dismissal without employer responsibility.

To carry out a dismissal without employer liability for abandoning work, there must be a prior warning, that is, a reiteration of the fault.

After having been reprimanded at least once for work abandonment, it would be necessary for the worker to incur in a new work abandonment.

The requirement of a warning or prior reprimand was established by the legislator himself.

Additionally, the jurisprudence of the Second Chamber of the Supreme Court of Justice has indicated that this recurrence must occur within three months of the first abandonment; that is, there must be a maximum period of three months between the prior warning and the new abandonment of work that would justify the dismissal without employer responsibility. In this sense, vote No. 536, of 9:40 a.m. on September 7, 2001, can be consulted; vote No. 883, at 10:20 a.m. on September 20, 2006, and vote No. 857 at 10:30 a.m. on November 14, 2007, among others.

However, as in any rule, there is an exception in which dismissal proceeds without employer responsibility, without the need for a reiteration or prior warning for job abandonment.

Said exception has also been developed by the jurisprudence of the Second Chamber of the Supreme Court of Justice, establishing that if the abandonment of work is severe due to the circumstances that surround it or the damages caused to the employer, it is not necessary a prior warning, since abandonment alone would constitute a severe offense under the terms of subsection l) of article 81 of the Labor Code, which expressly indicates the following:

"ARTICLE 81.- There are just causes that empower the employer to terminate the employment contract: (...)
l) When the worker incurs in any other serious breach of the obligations imposed by the contract.

In this sense, vote No. 395 of 10:40 a.m. on December 17, 1999, can be consulted, as well as vote No. 272 of 9:10 a.m. on September 10, 1999.

It should be clarified that the "seriousness" of job abandonment is a situation that must be assessed in each particular case, considering the circumstances surrounding said action.

Although the assessment of the seriousness of a job abandonment indeed responds to a subjective evaluation, the Second Chamber of the Supreme Court of Justice, through its jurisprudence, has been clear in indicating that it is not necessary that damage or a detriment to the employer; instead, the mere eventuality of the circumstance (a potential risk) is enough to be understood as severe and thus justify the termination of the employment relationship without prior warning.

The clearest example was reflected in vote number 194 at 9:55 a.m. on March 5, 2008, in which the fact that a security guard put aside his surveillance work to watch a soccer game, an action that involved disregarding the protection of the patron's property and threatened the safety of the people who were inside the building. For clarity, the following excerpt is quoted:

(...) the actor, effectively being in his duties as a security guard, on June 4, 2005, in charge of the television circuit camera monitoring post, observed a soccer match of the National Team, through of the monitors in which he had to control the images of the security cameras, thus neglecting, negligently, the surveillance task entrusted by his employer, of the facilities and assets of the Social Protection Board, as well as of the people who were there, without having verified that he had the permission of the manager of the Board, to watch soccer games. Although it is true that the witnesses indicate that Mr. Trigueros did not physically leave his job, that is not disputed because it was precisely, using a monitor that was at his job, that he watched the soccer game, with what who disregarded his duties. (...) The conduct displayed by the plaintiff seriously breached his contractual obligations, because it is not possible in the functions of safeguarding goods and people, to conceive an official diverting the attention of one of the surveillance monitors, to observe a soccer game, which is evidenced by the same statements of the actor's co-worker witnesses, it was already planned that a television be turned on, which the actor took advantage of so that from his job he could also watch the game; This implies abandoning their work for at least an hour and thirty minutes, which is the duration of a soccer match, and even though there is no proof that an emergency situation was generated that compromised property or the life of any person, the only eventuality of the circumstance, is serious enough to justify the termination of the employment relationship (...).

Although here the action of watching a football match has been analyzed as an abandonment of work, there are other activities that would be considered abandonment of work and would have the same treatment explained above; for example, the use of the cell phone for personal matters during working hours or being absent from the workplace.

Under the preceding, and although each specific case must be assessed, the worker who decides to watch a soccer game during his working day without the employer's permission will be exposed to at least one reprimand.

If you repeat such conduct, you could be fired without employer responsibility. In some cases, depending on the seriousness of the circumstances surrounding you, you run the risk of dismissal without employer responsibility, without the need to have been cautioned at least once previously.

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

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