Dismissal due to poor performance of the worker can be based on articles 71, paragraph b and 81, paragraphs h and l of the Labor Code.
In this sense, the first rule requires the worker to carry out his or her work with "appropriate intensity, care and dedication." While the second rule authorizes dismissal without employer responsibility when the worker manifestly and repeatedly refuses "to abide, to the detriment of the employer, the rules that the employer or its representatives in the direction of the work clearly indicate to him in order to obtain the greater efficiency and performance in the tasks being carried out" (section h) and when "the worker incurs any other serious breach of the obligations imposed by the contract" (section l).
Additionally, the Second Chamber of the Supreme Court of Justice has indicated the following requirements for dismissal without employer liability in cases of poor performance:
"In our ruling No. 821-2012 it was stated: "The legislator did not establish under what conditions poor performance can be considered a fair cause for dismissal, but doctrine and jurisprudence have outlined the characteristics that must be met so that it can give rise to dismissal without the employer's responsibility. In general, it has been pointed out that poor performance must be voluntary and repeated. The first element, of a subjective nature, is required to differentiate it from ineptitude, given that in the latter the same result is also present -inefficiency or low performance-, but this circumstance does not derive from the will of the worker, but from some condition intrinsic to him, or external, that prevents him from performing efficiently at work. Consequently, not only voluntariness is required, but also imputability, since it is necessary that the decrease in performance must be directly attributable to the worker. The other element is objective and refers to the continuity required for it to be framed as grounds for dismissal. Isolated facts of low productivity do not have the virtue of configuring the cause for dismissal" (Res: 2015-000602, SECOND ROOM OF THE SUPREME COURT OF JUSTICE. San José, at nine hours thirty minutes on June 5, two thousand and fifteen.)
Consequently, it is necessary to proceed with the dismissal without employer liability that the company has sufficient evidence to demonstrate that the worker's poor performance is repeated and voluntary.
Regarding repeated non-compliance, jurisprudence establishes that "isolated events of low productivity do not have the virtue of configuring the grounds for dismissal" (Second Chamber, res. 2012-821). On the other hand, although a period is not established in which the fault must occur, efforts must be made to demonstrate the recurrence during the months prior to applying the final corrective measure. In this sense, for a dismissal due to poor performance, it is necessary to ensure that the productivity attributed to the worker in certain aspects of his work is measured up to the last entire month before dismissal so that the application of this last sanction coincides immediately with the last month in which the worker does not meet the goal.
Neither jurisprudence nor laws indicate the number of months that must be taken into account to determine the average that proves that the worker has low productivity. Consequently, the company is empowered to establish the time period that will be measured, taking into account reasonableness and proportionality criteria.
The fact that productivity is irregular or that there is a month or several months in which the worker does meet the goal forces the company to measure productivity over a more extended period of time to demonstrate, percentage-wise and objectively, that the worker did not reach the minimum goal.
On the other hand, it is essential that the goals established as the deadline to meet them are reasonable and proportional since, if either of the two concepts is classified as unreasonable or disproportionate, the worker could not be sanctioned for his poor performance. In this sense, the demonstration that a majority of workers exceed the required goals can help the company prove these circumstances.
For the volunteer requirement to be configured, the worker must have previously been advised verbally or in writing about his poor performance, so it is necessary that there be a written record that demonstrates that there has been dialogue with the company over the course of time. In this sense, the objective of said support is to help the worker overcome his deficiencies so that once identified and assessed together with him, it is determined if the worker requires more training or if there are objective circumstances that affect his productivity (causes attributable to the company). The above is also necessary to demonstrate in the event of an administrative claim or judicial lawsuit that the company's decision to sanction or dismiss the worker is not surprising or in bad faith.
A good practice is that when the worker's poor performance is repeated so that it is foreseeable for the company that the decision to dismiss is going to be made, the last log of dialogue prior to dismissal should simply record the worker's productivity data, but not establishing any commitments to improve. If improvement commitments are established, the worker could have an expectation that the company is granting him an additional period to improve, and in the event that a dismissal without employer responsibility is applied under such conditions, it could be considered at a judicial level as unjustified as it is surprising and contrary to good faith.
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