Article 81 subsection f) of the Labor Code establishes the following:
ARTICLE 81.- The following constitute just causes that empower an employer to terminate an employment contract: (…)
f) When the worker compromises, through their recklessness or absolutely inexcusable carelessness, the safety of the workplace or of the people present there;
This legal provision underscores the shared responsibility between employers and workers in maintaining a safe working environment, aligned with a culture of risk prevention. It also aims to protect the workplace and safeguard both the employees and company assets from preventable accidents.
The key elements established by this regulation to justify dismissal without employer liability for this reason can be summarized as follows:
1. Concepts of "Recklessness" and "Absolutely Inexcusable Carelessness": Firstly, not every mistake or oversight constitutes valid grounds for dismissal. The worker’s action must be categorized as serious and beyond the bounds of reasonable tolerance. The act must exceed a common error.
For example, ruling number 100-2008 issued by the Labor Court, Section IV of the Second Judicial Circuit of San José, determined that a gardener at a penitentiary committed serious recklessness when he caused a fire. The worker, intending to burn some papers, placed them on a mound of grass without noticing that it was dry. The grass's condition, coupled with wind action, spread the fire, endangering the lives of inmates and the facility’s assets.
Additionally, jurisprudence from the Second Chamber has interpreted Article 81 subsection f), incorporating "negligence," "lack of skill," and "failure of duty of care" into grounds for dismissal. It further indicated that the sanctionable act could be by commission or omission.
The concept of "negligence" has explicitly been defined as "omission of the diligence or care required by the worker in performing assigned tasks and managing or safeguarding work tools. Negligence can be qualified by failing to act, by acting improperly, or acting untimely and with delay" (Ruling number 846-2010 issued by the Second Chamber). In the same ruling, a JAPDEVA (portuary institution) guard was determined negligent for allowing a private vehicle to enter at dawn, resulting in the theft of tires.
On the other hand, lack of skill is understood as the absence of the aptitude, skill, or technical knowledge necessary to perform an activity requiring specific capabilities. For instance, a physician conducting surgery without possessing the necessary competencies.
Lastly, "failure of duty of care" is considered a broader concept encompassing both negligence and lack of skill. It is viewed as a breach of the obligation to act with due diligence.
2. Severity of Risk: The conduct must have created a real and tangible danger to workplace safety or the people working there. For instance, ruling number 13-2009 by the Second Chamber indicates that authorities discovered several fireworks in a warehouse at the Cañas cemetery managed by the worker. However, the dismissal was deemed unjustified, as such action was not considered a danger to the community or cemetery visitors.
Moreover, the worker’s non-compliance with safety regulations must be assessed within the context of their specific tasks, the particularities of their job, and the conditions of the workplace provided by the employer. Each case must be analyzed independently. Ruling number 418-2004 by the Second Chamber explicitly states that "it would be materially impossible for the legislator to list all behaviors that could be considered serious, given their innumerable nature".
3. Evidence and training: Clear and objective evidence supporting the worker’s direct responsibility for the act must be presented. Additionally, the evidence must demonstrate the seriousness and inexcusable nature of the act, complying with Article 478 of the Labor Code, which imposes this burden of proof on the employer.
Ruling number 105-2000 by the Second Chamber found a dismissal unjustified due to reasonable doubt regarding the employee’s direct culpability. In that case, an employee and a coworker repaired a vehicle with a gasoline injection issue. The following day, the coworker alone continued working on the vehicle, which caught fire when ignited due to loose fuel hoses. It could not be determined which worker was responsible.
It is also necessary for employees to receive proper training on the use of tools or work instruments and appropriate instruction to adhere to and comply with established safety regulations. Training staff on safety protocols and promoting a culture of responsibility is essential.
In ruling number 530-2019 by the Second Chamber, dismissal was justified as an operator used a bending machine with its laser disconnected to expedite his work, contrary to the safety measures he had been instructed to follow.
Dismissal without employer liability based on Article 81 subsection f) of the Labor Code must be applied cautiously, ensuring compliance with legal requirements. The regulation is designed to protect workplace integrity but also demands employers act objectively.
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