Legal treatment of suspension without pay in Costa Rica
To address the topic of unpaid suspension, it is important to note that the only provision in the Labor Code that allows for the possibility of applying unpaid suspension is Article 68, which refers to internal work regulations.
This led to the Ministry of Labor opposing, for many years, the application of unpaid suspensions by private companies, except in cases where the company had an internal regulation governing such a measure.
However, the Second Chamber of the Supreme Court of Justice, in ruling 883-2008 at 10:00 a.m. on October 10, 2008, stated:
“In the employment relationship, there is a fundamental element constituted by legal subordination, understood as the employer's right to give orders, direct the worker’s tasks, set their limits, and even exercise the right to discipline them in case of violations of obligations imposed by the employment contract (Article 18 of the Labor Code). In exercising this right, when faced with a serious offense, the employer may choose the most severe sanction provided in the legal framework, which is dismissal (Articles 29 and 81 of the stated Code), or generally apply a measure with less severe repercussions for the worker, such as unpaid suspension or a simple warning in cases of minor offenses.” (883-2008 at 10:00 a.m. on October 10, 2008).
This criterion has been reiterated in rulings 883-2013 at 09:45 a.m. on July 26, 2013, and 1266-2019 at 09:25 a.m. on July 18, 2019, both from the Second Chamber of the Supreme Court of Justice.
Thus, based on the principle of “he who can do more can do less” in pronouncement DAJ-AER-OFP-072-17, the Ministry of Labor recognized the possibility for private companies to enforce unpaid suspensions even without internal regulations.
In this pronouncement, it was stated:
“In law, there is a principle that says ‘he who can do more can do less.’ Simply put, if the employer has sufficient authority to apply a dismissal without employer liability when permitted by law, they would also have the authority to apply an alternative, less severe sanction.”
This pronouncement was ratified by circular DNI-CIR-02914-19 from the Legal Advisory Department of the Ministry of Labor.
In these cases, it is essential to emphasize that to apply an unpaid suspension, the employee must have committed a serious offense that grants the employer the right to proceed with a dismissal without employer liability in accordance with the provisions of Article 81 of the Labor Code. Therefore, instead of the most severe disciplinary measure—dismissal without liability—the employer may decide to apply a less severe measure, such as an unpaid suspension.
This means that unpaid suspension is not an ordinary disciplinary measure, as it requires an analysis of proportionality and should be applied as an alternative to dismissal.
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