The trial period is the time during which the employer can assess whether the employee has the necessary skills to carry out the job for which he was hired.
In Costa Rica, this period is not regulated generically in employment contracts for a fixed or indefinite period. The only rule that refers to this issue is article 102 of the Labor Code, which regulates the employment contract related to domestic service. Said rule establishes that the first three months will be considered a trial period, and either party (employer or worker) may terminate the employment relationship without prior notice.
However, based on an interpretation of articles 28 and 29 of the Labor Code, which establishes that the payment of notice and severance pay are granted as compensation in the event of unfair termination, and when the employment relationship has been developed by more than three months, it has been established that either party can terminate the employment relationship within the first three months of the contract without liability; therefore, that time has been established as a trial period.
Dismissal during the trial period
If the worker does not meet the expectations of his hiring or does not obtain the agreed goals during the trial period, the employer could terminate the employment contract with employer responsibility without canceling notice and severance pay; The preceding is equivalent, in terms of equity, to making a dismissal without employer liability. However, the employer must pay the christmas bonus and vacations in proportion to the period the worker served the trial period.
Despite the preceding, if the company dismisses the worker, with or without employer liability, for not passing the trial period, the most usual contingency –given the short duration of the employment relationship– is that the worker files a procedure and allege that his dismissal was due to a discriminatory reason; likewise, in that same matter or an independent one, he can claim the payment of compensation for damages.
In the said procedure, to rule out the existence of the discriminatory reason or the factor that caused the damage, the company must demonstrate the existence of the trial period and especially the objective reasons that motivated the dismissal, that is, the breaches incurred by the worker that made him not exceed said term (Resolution 2021-000410, Second Chamber of the Supreme Court of Justice).
Therefore, if the company implements a trial period and seeks to demonstrate the objectivity of the dismissal before a judicial proceeding, it is essential that the following be documented:
Having indicated to the worker, before being hired, that his permanence in the job is conditional on passing a trial period. The worker must accept this before signing his contract. This must also be expressly documented in the employment contract and preferably in the offer letter.
The term and the result of the tests must be established based on the job profile (in this regard, the worker must indicate that they knew the profile before being hired). The tests must also be consistent with the tasks carried out during the trial period since the worker cannot be evaluated on something that has not been practiced.
Communication to the worker about:
What is the duration of the trial period. It should be a reasonable time to check if the person is suitable or not.
What tests are going to be applied. The result must be analyzed with the worker, who will sign a document stating that he was informed of the result of the tests.
Is it possible to agree on a trial period during the execution of the employment contract?
Nothing prevents the trial period from being agreed upon during the execution of the employment contract. An example of the above would be to condition a promotion to the approval of a trial period to determine if the worker has the necessary skills and abilities to perform the new position.
In this case, before promotion, the worker must be made aware of the said requirement. According to the evaluation criteria indicated, if he does not perform during the trial period, he may be relocated to his original position without generating liability. In addition, the ideal would be to regulate any conditioning and evaluation metrics that may influence said trial period during the execution of the contract, whether in the addendum that regulates the promotion, in a policy, or a work regulation.
Likewise, due to the purpose of said period, its justification would be more significant in cases in which the company wishes to verify if the worker has new skills or abilities different from those previously performed.
Incapacity and extension of the trial period
Although it is possible to establish a trial period, the employment contract is considered duly valid from the first day of work for all legal purposes. Therefore, the trial period does not constitute a separate contract but is part of the conditions included in the employment relationship for purposes of calculating seniority.
Additionally, suppose the worker is incapacitated for a prolonged period such that three months have already passed on his return, if the employee is dismissed with employer liability for not meeting the expectations of the position or obtaining goals agreed in the trial period, the worker has the right to receive notice and severance pay.
Finally, it is convenient to know what happens when the worker's incapacities during the trial period prevent him from fulfilling the objectives pursued within the foreseen period. In this case, would the worker have the right to request that the trial period be extended to the period initially planned?
Although during the disability, the worker cannot be dismissed with employer responsibility, the decision to not extend the trial period should only be justified if there is an objective and reasonable reason why it is not possible to continue with the same trial period. The preceding is also applicable to the term foreseen for internal promotions.
At Bufete Godínez y Asociados, we specialize in counseling and advising employers in labor and employment law. If you need any additional information, do not hesitate to contact us by clicking here.
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