Dismissal for force majeure

A little-known ground, set out in Article 85(c) of the Labor Code, which the Second Chamber of the Supreme Court explains in decision 00580-2022 as justifying the dismissal of a person suffering from an illness that affects the performance of their position, without the dismissal being discriminatory.

The case examines the grounds for dismissing a person who suffered from a non-disabling illness of which the employer had no knowledge at the time of hiring. Because of that illness, the employee could endanger their own life and the lives of others present at the site if, while performing the contracted work (operating heavy machinery), they suffered a crisis or attack caused by the condition.

The Chamber reviews the civil-law concept of force majeure and accepts its evolution and application to labor law, starting from the premise that force majeure has at times been understood as a fact or event that could not be foreseen or that, even if foreseeable, cannot be avoided. Drawing on prior case law, the Chamber holds that force majeure must meet three essential elements: (a) unforeseeability; (b) unavoidability; and (c) externality. In this context, these elements must always be read in light of the employee's rights. The Chamber concludes that force majeure is an event external to the person (the employee) from whose standpoint it is analyzed, together with that person's inability to avoid it.

Applying this to the case, the Chamber held that the claim of discriminatory dismissal was unfounded: the employer did not know of the illness when it hired the employee, the condition did not warrant sick leave and was beyond the employee's control, but it limited the employee's ability to perform the job, including a risk to their own life and the lives of third parties.

This ground should not be equated with the one in Article 254 of the Labor Code, which is limited to occupational illnesses or accidents and requires a medical recommendation to change the employee's position and a properly reasoned and documented internal analysis showing that the employee cannot be moved to another position.

In both cases, the dismissal requires payment of all statutory labor entitlements: accrued unpaid vacation, the proportional year-end bonus (aguinaldo), notice pay and severance (cesantía).

Inquiries: aas@aguilar.law