#CostaRica 🇨🇷 #BDS_LaborAlert: Constitutional Chamber Redefines Rules on Collective Bargaining and Longevity Bonuses in the Public Sector
The Constitutional Chamber of the Supreme Court of Justice recently issued Judgment No. 8201-2025,...
María is absent from work without justification on a Monday. The company issues her a written reprimand. Two months later, she is absent again without providing any justification, and she receives a formal written warning that further misconduct may result in dismissal. One month later, she is absent again without justification.
Until recently, many employers would have considered that, following a written reprimand and a subsequent warning, another recurrence within the following three months would justify the most severe disciplinary sanction: dismissal without employer liability.
However, this reasoning was recently called into question by the Labor Chamber of the Costa Rican Supreme Court, specifically in Judgments No. 2823-2025 of September 3, 2025, and No. 3216-2025 of September 24, 2025. In both cases, the Court reviewed dismissals based on progressive discipline after employees accumulated unjustified absences occurring at different times and had previously received disciplinary sanctions for those same incidents.
The employers argued that the repeated unjustified absences justified termination of the employment relationship. The Court reached the opposite conclusion, holding that dismissal was not legally justified.
The Labor Chamber's analysis is based on a fundamental premise: the Labor Code already contains a specific provision governing dismissal for unjustified absences. Specifically, Article 81(g) authorizes dismissal without employer liability when an employee is absent for two consecutive days or for more than two non-consecutive days within the same calendar month.
Based on this premise, the Court concluded that it is not legally permissible to rely on the residual ground for dismissal contained in Article 81(l) to terminate employment for unjustified absences when the legislature has already expressly regulated that conduct elsewhere within the same article. According to the reasoning set forth in both decisions, the provision referring to "any other serious misconduct" is reserved exclusively for conduct that is not expressly addressed in the preceding subsections.
The implications of these rulings are significant. If an employee incurs isolated unjustified absences over the course of different months, dismissal would nevertheless be considered unjustified unless the absences amount to two consecutive days or more than two non-consecutive days within the same calendar month, as established in Article 81(g) of the Labor Code. This holds true even if prior disciplinary warnings have been issued, a clear pattern of repeated misconduct exists, and the employer has properly followed a progressive discipline process.
The practical difficulty arises when unjustified absences occur periodically but never reach that statutory threshold. For instance, one employee is absent for one day in January, another in March, and another in June. Another employee misses one day every two or three months. Although these absences disrupt business operations and require employers to continually reorganize their workforce, none of them satisfies the specific statutory ground for dismissal established by the legislature.
Historically, progressive discipline served as the mechanism for addressing precisely this type of situation. The underlying rationale was straightforward: if the misconduct continued during the effective period of prior disciplinary sanctions, the employer could progressively escalate the disciplinary response, ultimately leading to dismissal.
The judgments discussed above expressly reject that approach.
The Court's position does not mean that unjustified absences are exempt from disciplinary actions. On the contrary, written reprimands and reprimands with warning remain valid disciplinary measures within the employer's disciplinary authority.
What the Court rejects is an employer's attempt to base a dismissal resulting from a subsequent unjustified absence on a legal ground other than the one specifically established by the legislature for that type of conduct.
This is precisely the principal question left unanswered by these decisions. If an employee repeatedly incurs unjustified absences, is disciplined accordingly, and nevertheless continues engaging in the same conduct without ever accumulating two consecutive absences or more than two non-consecutive absences within the same calendar month, what legal tool remains available to the employer to address that situation?
For now, the judgments provide a clear answer as to what employers may not do, but they do not explain what the appropriate response should be to repeated misconduct that creates operational disruptions without satisfying the specific statutory grounds for dismissal.
What, then, should employers do? First, employers should carefully evaluate any case in which dismissal is being considered because an employee has repeatedly incurred unjustified absences. If those absences do not amount to two consecutive days or more than two non-consecutive days within the same calendar month, dismissal is now considerably riskier than it was before.
It is also worth remembering that, for the time being, this position is based on only two judicial decisions. It remains to be seen whether the Labor Chamber will continue to apply this interpretation in future rulings or whether it will introduce additional nuances regarding the scope of progressive discipline in these circumstances.
Until greater judicial certainty develops, the prudent approach is to analyze each case individually before proceeding with dismissal without employer liability based on repeated unjustified absences under a progressive discipline framework. Rather than assuming that repeated misconduct alone is enough to justify termination of employment, employers should carefully assess each situation in light of the legal risks associated with the Court's current position.
Adriana Benavides
Attorney at BDS Asesores
