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An employee’s unjustified absence from work is one of the most common forms of misconduct, yet it often has a significant impact on a company’s operations. Failure to report to work without a valid excuse creates understandable frustration for employers. This leads to a recurring question: In addition to penalizing the employee, is it legally permissible to deduct salary for the days of unjustified absence? The question arises because some believe that imposing both a penalty and a salary deduction constitutes double punishment.
First, the employer’s authority to penalize an employee for an unjustified absence stems from the employee’s express obligation to provide services at the agreed time and place (Article 71, subsection b) of the Labor Code). Furthermore, if this obligation is breached for two consecutive days or more than two non-consecutive days within the same calendar month, it constitutes grounds for dismissal, pursuant to Article 81, subsection g) of the Labor Code.
Whether or not grounds for dismissal are met, the key question remains whether, in addition to the disciplinary action, the employer is also entitled to apply a salary deduction for such absences. In addressing this issue, it should be noted that both the Labor Chamber (Sala Segunda) and the Constitutional Chamber of the Supreme Court have interpreted that, due to the nature of the employment contract, failure to render services results primarily in the non-entitlement to salary.
These situations have been specifically addressed by the Labor Chamber. In this regard, Judgment No. 02272–2023 provides as follows:
“By way of example, in the case of two consecutive unjustified absences within the same calendar month, pursuant to Article 81, subsection g) of the Labor Code, it is possible to exercise disciplinary authority and impose a penalty (which in such case could even be dismissal). However, additionally, as a consequence of the synallagmatic nature of the employment relationship, for those days on which services were not effectively rendered due to unjustified absences, the corresponding salary payment is not applicable. This does not constitute double punishment or a prior disciplinary action.”
Therefore, the Labor Chamber does not consider the application of both a salary deduction and a disciplinary action for unjustified absences to be double punishment.
This position is also shared by the Constitutional Chamber, which, in a similar case, through Judgment No. 03522–2016, also found it legally permissible to issue a reprimand and apply the corresponding salary deduction:
“(…) in reality, this does not constitute a disciplinary action, but rather a consequence of the lack of services rendered, for which the claimant cannot be remunerated if work was not performed. Therefore, the only penalty imposed on the claimant was the written reprimand for failing to report to work on December 31, 2015, a day that was not among the mandatory holidays established in Article 147 of the Labor Code (…)”.
As can be seen, from a legal perspective, the disciplinary action and the corresponding salary deduction are two distinct matters, and one does not exclude the other. The authority to penalize arises from the employee’s breach of obligations established in the Labor Code, while the salary deduction results from the failure to render the agreed service. This does not constitute what is known as double punishment or a violation of the non bis in idem principle, to the detriment of the employee.
Additionally, it is worth recalling that when exercising disciplinary authority in response to employee absences, it is advisable to do so at the end of the calendar month in which the absence(s) occurred, as this allows the employer to properly determine whether the grounds for dismissal have been met. If each absence is penalized separately in advance, they cannot later be accumulated to justify dismissal without employer liability, as that would indeed involve penalizing the employee twice for the same misconduct.
Francisco Salas Chaves
Co-Founding Partner, BDS Asesores
