Prescription period to sanction a worker for a breach

When speaking of disciplinary power, reference is made to the authority that an employer has to apply corrective measures, be it a written or verbal reprimand, suspension, or even dismissal.

On the other hand, the prescription can be considered a sanction for the person who has a right but does not execute it in a certain period, which prevents him from exercising it once a period established by law has expired.

"The legal institute of the negative prescription has been established as one of the ways of extinction of the obligations and, for it to operate, the passage of a certain time is enough, without the holder of the right having claimed it, when exercising the respective action. About this institute, this Chamber has ruled on multiple occasions in the following sense: "In labor matters, the legal institute of negative prescription establishes that, in general, the obligations are extinguished with only the passage of time provided by the legal system legal, when whoever has the enforceable right, does not exercise it within the legally established term"(Resolution 1543-2018 of the Second Chamber of the Supreme Court of Justice of 09:50 on September 7, 2018).

The purpose of this figure is to seek legal certainty, or in other words, certainty about a particular situation or condition.

In Costa Rica, the term that the employer has to sanction the faults committed by the worker is regulated in article 414 of the Labor Code, which indicates:

"Without prejudice to what is established in the special provisions on the limitation period, the rights and actions of employers or employers to justifiably dismiss workers or workers, or to discipline their faults, will prescribe in the term of one month, which will begin to run from when the cause for the separation or sanction was given or, where appropriate, from when the causal facts were known.”

Therefore, it is necessary to distinguish between mere verification faults and hidden faults. The first is related to notorious and obvious situations (for example, a late arrival or an absence), while the second refers to facts that can remain hidden from the employer until, for some reason, whether it is a study or a complaint, they enter within the sphere of his knowledge.

Said differentiation is of great relevance since the period of one month to sanction the offenses of mere constancy will start from the moment the offense was committed. In contrast, for the hidden offenses, the time will begin when the employer has effective knowledge and certainty about the fault committed by the worker.

There could even be cases in which an in-depth study or audit would be necessary to determine the worker's responsibility in the event of a fault committed, such as the mishandling of assets. In this case, the term to apply disciplinary measures would begin to run with the completion of the study or audit carried out.

"Then, it must be assumed that it is from the effective knowledge of the misdemeanors by the employer (a) when the term of the prescription should have started to run to sanction the (the) worker (a). Due to the preceding, it is believed that the audit was carried out to determine the "irregular situation presented with the recovery of credit invoices in the San Carlos Dairy Branch." This investigation, according to what was recorded there, began based on the email sent by the Chief Financial Officer of that branch, in order to clarify a suspicious event, namely: "...that credit customers in the Zarcero area began to be late in their payments, since at that time they had a very good record of payments" (folio 119). This led the audit representatives to visit the branch on February 13, where "the information sent via email by the Chief Financial Officer of the indicated Branch was documented... / The historical behavior of the collections from credit customers in the Zarcero area, made by the aforementioned routing agent and collector./ We obtained a written statement on the events that occurred from Mr. RFR" (see folios 120 to 121), concluding in his report that: "…the case detected by the administration of the San Carlos Branch is a typical act of improper use of funds that are not their own (fund jockeying), carried out by Mr. RFR, which was carried out carried out according to his declaration for involuntary loss of money, a fact that we cannot verify. Based on the foregoing, we conclude that the aforementioned person was inappropriately and fraudulently using money that belongs to the Cooperative" (folio 122), a circumstance for which he recommended to the General Management of the cooperative that "the Sub-directorate of Regional Sales South and Costa Rica, in coordination with the Human Capital Department, proceed immediately to apply the corresponding disciplinary sanction to Mr. RFR, given the offense he committed, and coordinate with the Financial Sub-Directorate on how to recover the money that he Mr. RFR is currently indebted to the Cooperative" (folio 122). This report was dated February 23, 2009 (report No. 2009-045, folios 119 to 122) and, as a consequence of this, the director of Marketing and the director of Human Capital of the defendant adopted the measure of dismissing the plaintiff. as of March 23, 2009, which was communicated to him on that same date (March 23, 2009), as stated in official letter No. DCHD #41 visible on page 39, so it is evident that the dismissal it was arranged within the period established in numeral 603 transcribed. See, indeed, it was with the data provided by the audit that the defendant's representatives found out the real context of the facts denounced by the Financial Director of one of the defendant's branches" (Resolution: 2012-1126 of the Second Chamber of the Supreme Court of Justice at 10:45 a.m. on December 12, 2012) (The highlighting does not appear in the original).

Once the period mentioned above of one month has elapsed, any disciplinary measure, from a reprimand to dismissal, would be considered unjustified; therefore, before proceeding to apply any corrective measure, it is recommended to validate the date on which the facts became known.

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.


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Jairo José  Cerdas

Jairo José Cerdas

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