RELEVANT ASPECTS REGARDING THE NEW LABOR PROCESS REFORM IN INDIVIDUAL AND BUSINESS ISSUES (RPL)
The new labor process reform is considered by companies and workers as one of the most characteristic and important reforms since the promulgation of the Labor Code. It comes to fill in a complete and specific legislation that until now was governed, in part, by repeated rulings of the Second Chamber of the Supreme Court of Justice, and not by a norm with law enforcement, as it is with the present law.
Letter of dismissal
One of the rules that was expressly included were the letters of dismissal, which have generated controversy in the last decade. It establishes the obligation to deliver a letter of dismissal in case of firing a worker without the employer liability, and with detail of the facts. In the dismissal letter, the fact or facts on which the dismissal is based, must be described in a timely, detailed and clear manner, and it also must include the documenting and surrender procedure, which will be either personally or in the event of refusal by the worker, it will be delivery before the Ministry of Labor.
In discrimination, the elements of non-discrimination are amplified, which implies that any discrimination on the grounds of age, ethnicity, sex, religion, race, sexual orientation, marital status, political opinion, national origin, social origin, affiliation, disability, trade union affiliation, economic situation or any other similar form of discrimination is prohibited.
Another important aspect in this issue is that a new cause of dismissal is introduced. This new cause is considered as a “serious misconduct” and it implies that the worker, in the exercise of his functions relating to recruitment, selection, appointment, movement of personnel or any other form, incurs in discrimination, giving this subject a special value, relevance and promoting a work environment free of discrimination.
In relation to this substantial issue, it stipulates the headquarters of where the dismissals processes must be managed. In cases of pregnant women, adolescents, trade union, complainants of sexual harassment it states that it should be sought before the ¨Dirección Nacional de Inspección General de Trabajo¨, and in cases of plea of requests before the Labor Court. In both instances a summary process is created to state the corresponding sanction.
In this section, it indicates that the judicial authority must investigate the facts even if the parties have proposed the evidence. The fundamental objective of the evidence in a labor process is the search for material truth.
The burden of proof regarding the controversial facts, corresponds to the party that request them in their favor, it does not indicate a specific party, however, in disputes arising from employment contracts, it corresponds to the working party to prove the personal performance of the services, and it is incumbent upon the employer to demonstrate the impeding events that he invokes and all of those that required to be properly documented or registered, as the rights and obligations of the employees.
We can see once again, as this new reform is inclined towards the guarantees of the workers. Lexincorp advises all employers to have special interest and attention in these details, which, after this reform, will acquire much relevance. We have lawyers specialized in labor matters who know the scope of this new reform and its implications at individual and business level.
Cristina Salas Trejos
Lexincorp Costa Rica
6 de marzo del 2017