#CostaRica 🇨🇷 #BDS_Article: How to Apply Disciplinary Power in My Company Without Failing

In the employment relationship, there are three key powers employers exercise: the management, oversight and disciplinary powers. Of these, the management power is generally seen as the least intrusive.

The disciplinary power, on the other hand, comes into play when an employee fails to fulfill the obligations stemming from the employment contract, the proper management by their employer, or the application of the oversight power intended to monitor, supervise, and ensure compliance with workplace functions, duties, policies, rules, and assigned tasks.

While the management and oversight powers are a crucial duo for ensuring that "the ship reaches its destination," the need to apply disciplinary processes in the workplace when the situation demands cannot be overlooked.

However, knowing how to draft a warning letter or which articles of the Labor Code to reference as the legal foundation for disciplinary action isn’t enough. It is equally essential to consider the following factors for a successful disciplinary process:

1. Understanding and applying the principles and limits of the disciplinary process: Proportionality and reasonableness dictate that any penalty must not be arbitrary or subjective. It should match the severity of the employee’s misconduct. The principle of non bis in idem ensures that an employee cannot be disciplined more than once for the same misconduct. Moreover, the principle of causality establishes a clear cause-effect relationship between the employee’s misconduct and the corresponding penalty. Additionally, the principle of timeliness ensures that penalties are applied promptly after the misconduct, providing legal certainty to the employee, as any infringement must be penalized within a set timeframe.
   
   
2. Reviewing the statute of limitations: This refers precisely to the principle of timeliness referred above, meaning employers must ensure that infringements are not penalized after the statute of limitations has expired. For these purposes the provisions of the law must be applied, as the Labor Code sets a one-month limit from the time the cause for dismissal or penalty occurs, or from the moment the employer becomes aware of the events, to discipline the employee.
   
   
3. Protection regimes under labor laws: An employee who is protected by certain protection regimes is not exempt from disciplinary action. In cases of progressive discipline that may result in dismissal without employer liability due to a serious misconduct, the employer must request authorization from the Ministry of Labor and Social Security to proceed with the termination on fair cause.
   
   
4. Documenting infringements: Since the burden of proof lies with the employer, it is critical to collect adequate evidence to prove the employee’s misconduct before a judicial or administrative authority. Also, in cases of progressive discipline, prior infractions and any supporting evidence must be properly documented and kept in the employee’s file as part of the due process and its application within the organization.
   
   
5. Individual case analysis: Within the organization it is possible that multiple employees commit similar infringements under similar circumstances, but even in these situations each disciplinary process will have its own unique aspects. Employers should always review and analyze each case individually to determine the appropriate disciplinary measure based on the severity of the misconduct.
   
   
6. Regarding the termination letter: If the disciplinary process concludes with a dismissal without employer liability and the employee refuses to accept or sign the termination letter, Article 35 of the Labor Code demands that the employer must submit this letter to the Ministry of Labor and Social Security within ten calendar days following the dismissal.

Properly applying the disciplinary process in an organization allows employers to implement internal control measures and effectively correct infringements in case these measures are breached.

This provides an opportunity for both employees and the organization to improve and move forward, as an objective, timely, and well-documented due disciplinary process enables the organization to take preventive remedial measures in line with the principle of good faith.

Mery Quirós

Attorney at BDS Asesores