In Costa Rica, loss of trust is a cause for dismissal without employer's liability that, despite not being explicitly contained within the Labor Code, has been recognized by the jurisprudence of the Second Chamber of the Supreme Court of Justice.
What faults can justify a dismissal for loss of confidence?
According to the Second Chamber of the Supreme Court of Justice, the loss of confidence as a cause for disciplinary dismissal derives from breaches that violate the content of good contractual faith, which is composed of ethical duties that must govern between the employer and the worker in any employment relationship, such as, among other responsibilities, loyalty, fidelity, trust, and probity (Second Chamber, resolution 2002-00061).
The importance of good faith in the employment contract stems from the requirement that the personal conditions that the employer valued and that influenced the hiring of the worker must remain without severe changes throughout the development of the employment contract.
Based on the preceding, it is necessary to establish that the loss of confidence does not always derive from breaches that have exclusively transgressed the confidence or trust placed by the employer in the worker.
However, some specific offenses that warrant the application of the disciplinary dismissal due to loss of trust are:
- a) Unfair competition
- b) Improper or unjustified appropriations of money or property
- c) Negligence or lack of duty of care in the performance of functions
- d) Forgery or alteration of documents
- e) Disclosure of confidential information
- f) Acceptance of gifts or bribes
- g) Deviant use of the powers granted by the employer to the worker to benefit himself or a third party (in the latter case, said powers could be exercised over work tools, means of production, etc.).
Circumstances that can aggravate or lessen the loss of confidence
Generically, it is crucial to establish that not every fault attributable to the worker is severe enough to justify applying the maximum disciplinary sanction.
In this sense, to justify the application of dismissal without the employer's liability for loss of trust or any other cause, the non-compliance attributable to the worker must be of such seriousness that it makes it impossible to continue the employment relationship. Consequently, it is the employer who, in the first instance, must determine whether the offense warrants the application of disciplinary dismissal for loss of confidence; If so, it is necessary to determine some circumstances that may influence this assessment:
The hierarchy and the job position carried out by the employee in the company impact the employer's ability to demand a greater attachment, with his actions and behaviors, to the duty of trust and good contractual faith. Therefore, the higher the hierarchy and according to the position held by the worker, if the worker commits a breach that may constitute a loss of confidence, said fault must be valued more rigorously. Jurisprudence has applied this distinctive treatment based on the position held to employees who occupy positions of trust and high hierarchy (such as those who occupy a manager position, the head of a department, or an establishment administrator). Likewise, said treatment has been applied to ordinary workers who, despite not occupying those positions, are in charge of a higher level of responsibility, such as workers who occupy positions in which money is manipulated, guarded, or administered (Second Chamber of the Supreme Court of Justice, resolutions 2014-1070, 2003-159, 2016-1286 and 2001-492).
The amount of economic damage caused by non-compliance is not relevant for applying dismissal without the employer's liability due to loss of confidence. In this sense, in unjustified appropriations of money or goods by the worker, the possibility has been admitted that the fault on which the dismissal is based has not entirely caused economic damage or that the economic damage caused has been minimal (Second Chamber of the Supreme Court of Justice, resolutions 2016-588, 2016-1286 and 2008-211).
The employer's consent for the worker to carry out the behavior that constitutes the non-compliance constitutes an extenuating factor of the fault. Thus, for example, there would not be an unjustified appropriation that could cause the loss of confidence before the employee who with a work tool extracts agricultural production from the business and subsequently takes said products with the authorization of the administrator of the company's farm (Second Chamber of the Supreme Court of Justice, resolution 2011-461).
It is crucial to establish that only some circumstances that may aggravate or lessen the non-compliance incurred by the worker and that may authorize the application of dismissal without the employer's liability due to loss of confidence were analyzed. Therefore, in practice, the circumstances to be assessed may be diverse and different from those previously mentioned. Therefore, the employer must consider all the circumstances associated with the specific case to determine whether the fault merits applying the maximum labor penalty.
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