Unjustified tardiness as justified cause of dismissal: interpretation and analysis

Recently, the Superior Labor Court of Panama, by ruling in second instance (appeal) on the labor complaint for unjustified dismissal filed against a Colon Free Zone company, declared fully justified the dismissal of an employee who had repeated unjustified tardiness and, consequently, acquitted the defendant company of all liability towards the economic claims of the plaintiff, who demanded severance compensation and payment of three (3) months of salary as unpaid salaries arising from an alleged unjustified dismissal.

It is important to set forth that the employer had sustained the dismissal of this employee, as it was clearly indicated in the dismissal letter in the following circumstances and facts irrefutably proven during the trial.

• The employee had registered constant and frequent unjustified tardiness.
• As a result of this prior unjustified tardiness, the employer had been reprimanded and suspended from work without pay for 1, 2 and up to 3 days.
• Notwithstanding all the progressive sanctions imposed by the employer pursuant to the provisions of the Internal Labor Regulations of this company, the employee incurred again in a series of unjustified tardiness, specifically 15 new unjustified tardiness in the same month.

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Evidently, we are not dealing with a situation where the employee was dismissed by incurring in some sporadic tardiness, but rather a scenario in which the employee incurred in repeated and frequent unjustified tardiness. In addition to this, even though the employer tried to correct the questionable behavior of the employee applying all the disciplinary sanctions contemplated in the Internal Labor Regulations of the company, the employee continued breaking the discipline that must prevail at the workplace, so that its behavior turned into an act of insubordination that could not be tolerated or allowed by the company.

The Superior Labor Court of Panama, very accurately in our opinion, then concluded that the employee

1. Had breached, without any justification, the order given by its employer regarding the work schedule established in the individual labor contract and in the Internal Labor Regulations, and that therefore,
2. Had incurred in an unjustified breach of orders, offense which is typified as justified cause for dismissal in numeral 10, Paragraph “A” of Article 213 of the Labor Code.

This transcendental decision of the Labor Courts of our country generates a radical change regarding the traditional criterion that governed historically in Panama on this matter, in the sense that unjustified tardiness did not constitute a justified cause for dismissal, but a simple minor offense that only justified the imposition of disciplinary sanctions such as reprimands and the suspension from work without pay.

We consider that this Judgment constitutes a positive change for the country, which shall allow the employers to control more effectively not only the daily and weekly working hours, but also the tasks they perform and the productivity recorded in both cases at the workplace.