Article 399 of the Labor Code provides a panorama where depending on the type of fault, an accusation may be made whose liability may be subjective or objective, which has practical differences of interest in matters of labor law infractions.
Article 399 of the Labor Code states, "The liability of natural persons is subjective and of legal entities is objective. When the conduct is carried out by an employer representative of a legal entity or economic interest group, in the terms of article 5 of this Code, the sanction will also fall on them as appropriate, to whom the economic effects of the fault of the representative extend jointly and severally".
Thus, if the complaint is pursued against a legal person (a company), an objective responsibility regime must be applied. This means that the company will be responsible and must compensate once a labor law violation is determined, regardless of its actions. It would be irrelevant whether the company was diligent or not, nor whether or not it facilitated or not the labor law infringement.
On the other hand, if the complaint is against an individual, a subjective liability regime must be applied. That is to say, only the person who has committed the labor law violation intentionally (with willful intent) or culpably (understood as a lack of duty of care due to imprudent or negligent behavior or lack of skill) can be convicted. In this way, mere liability for the result is excluded, as is the case with strict liability.
In summary, if the complaint is pursued against a legal representative of the company (a natural person), a subjective responsibility regime must be applied, where the accusing party must demonstrate and prove that the representative's intentional or negligent actions were responsible for the reported violations. In other words, the accusing party bears the burden of proof to demonstrate the intent or negligence of the employer representative concerning the reported violations.
Having clarified the above, the question arises as to how liability is assessed in cases of labor law violations, in which the company as a legal entity is denounced simultaneously with the employer's representative in his personal capacity (natural person), claiming joint and several liability, i.e., that both are equally liable for the violation committed.
It should be remembered that there is the possibility for the plaintiff to file the proceeding against the employer's representative and also against the company, since this is an option available to the plaintiff according to the labor procedural regulations.
In this regard, the magistrate Jorge Olaso Álvarez in his work Derecho Sancionatorio Laboral (2017); indicates of interest the following:
"This means that when the accused party is a natural person or when in addition to the legal person it is also wanted to be held jointly and severally liable for an action or omission of an employer's representative, the approach must be that of a subjective liability. In other words, in these hypotheses it is necessary to prove willful misconduct, imprudence or lack of duty of care on the part of the accused". (Jorge Olaso Álvarez. (2017). Derecho Sancionatorio Laboral, 1st edition. San José, Costa Rica: Editorial Jurídica Continental, p. 74.)
In addition, he further adds the following:
"when we find ourselves in a case of subjective liability-derived from imputing liability to the employer's representative- the willful or negligent breach of the representative must be demonstrated" (Ibidem, p. 75).
Finally, it concludes by stating that:
"In the event that the natural person accused is an employer representative, the accusing party is in the possibility of raising a possible joint and several liability of the legal person or economic interest group, for this to be feasible the subjective liability of the employer representative must be demonstrated" (Ibidem, p. 74).
Two conclusions can be drawn from the above quotations:
The first is that the obligation of the accusing party to prove the fraud or fault in the actions of the legal representative of the company persists, since it applies a subjective liability regime to him by imputing to him the faults denounced by his sole condition of representative.
The second is that, despite the fact that a legal person is subject to a strict liability regime, when the lawsuit is also brought against the legal representative of the company, it necessarily entails that in order for there to be joint and several liability of which the company is a part, it must be proven that the legal representative of the company acted fraudulently or negligently.
In synthesis, even though there may exist a joint and several liability between the defendant legal company and the defendant legal representative of the company, it is necessary that in order to condemn the company, the subjective liability of the employer's representative be reliably proven.
Thus, it is important to clearly determine who are the defendants in a process of labor law violations in order to determine the liability regime to be applied, and to establish the burden of proof to whom it corresponds, as well as to establish a due process that respects the right of defense of all parties.
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