The contested judgment duly established, according to the merits of the case file, that: \"...indeed the plaintiff was working at the relevant time as an official in the M.E.P., holding a permanent position as a Basic General Education Teacher at the Río Barranca School of the Puntarenas Regional Education Directorate (first fact of the complaint, official letter number DRHASIGRH- UPP-1549-2015 of May 5, 2015, issued by the Preschool and Primary Unit of the General Directorate of Human Resources of the MEP and incorporated into the case file on 05/18/2015 at 16:11:27 hours). That indeed, the plaintiff began the school year corresponding to 2012, and furthermore, she worked from February 8 to 10 and during those days she worked an alternate schedule (certification issued by the Director of the Río Barranca School on December 2, 2013, and incorporated into the case file on 03/10/2015 at 08:32:36 hours), but that nevertheless, she was on sick leave from February 13 to December 21, 2012 (certification of the plaintiff's sick leave from the CCSS, issued by the Esparza Branch on March 5, 2015, and incorporated into the case file on 03/10/2015 at 08:32:36 hours)....\". And it reaches the conclusion that: \".. That is, that at the moment the plaintiff went on sick leave, she was earning the salary supplement corresponding to 50% of her base salary for the concept of alternate schedule....\"., and based on this fact, it subsequently concludes that in the plaintiff's case, and in accordance with what was sought in her complaint, the application in her favor of sections 173 and 174 of the Estatuto de Servicio Civil was appropriate.
On one hand, what the plaintiff stated in the third fact of her complaint regarding the alleged Alternate Schedule additional duty assigned to her for the period from February 1, 2012, to January 31, 2013, is that there would have been a proposal for an alternate schedule to govern the 2012 school year, reported by the Director of the School, and that therefore, upon her return to work, she was supposed to work this additional duty. On the other hand, the State representation has maintained that the plaintiff was not assigned or appointed to any additional duty by means of a personnel action or telegram for the 2012 and 2013 school years, according to official letter DRH - ASIGRH - UPP - 1549-2015 of May 5, 2015, nor is it proven then that the plaintiff held this additional duty of alternate schedule in those years 2012 and 2013, except for the acknowledgment of February 8, 9, and 10, 2012, which was duly recognized and paid at the time.
Now then, although it is true that this Court does not share the substantive thesis put forth by the appellant, regarding an alleged misinterpretation and application of section 174 of the Estatuto de Servicio Civil by the lower court judge in their judgment, a conclusion that will be developed later, and which is contrary to what the Second Chamber of the Supreme Court of Justice has decided in similar cases, there does exist, in the opinion of this Court, a fundamental reason why this first grievance of the appeal must be upheld, and thereby the contested judgment revoked, and the complaint dismissed in all its respects.
We have it that, as was considered a true fact in the judgment, a true fact not challenged by this appeal, what was proven was that the plaintiff began the school year corresponding to 2012, and that she worked from February 8 to 10 and that during those days she worked an alternate schedule, with the fact being that she went on sick leave starting from February 13 to December 21, 2012. As can be easily observed, it was not proven in the judgment, as the appellant points out, that at the moment the plaintiff's sick leave was effective, that is, starting February 13, 2012, she had been granted the additional duty of the alternate schedule she claims for the 2012 school year and up until January 2013; there is no evidence in the case file to that effect. Thus, the conclusion reached by the trial judge, that at the moment the plaintiff was placed on sick leave on February 13, 2012, she was earning the salary supplement corresponding to 50% of her base salary for the concept of alternate schedule, has no evidentiary support and, consequently, constituted an erroneous conclusion by the adjudicator, as such a fact was never considered true. Therefore, it was not possible for the lower court judge to determine any illegal suppression of a supplementary salary which the plaintiff was not enjoying at the time of her sick leave date. For this reason, this grievance of the appeal must be upheld, and thereby the contested judgment revoked, dismissing it in all its respects.
2.- THE IMPROPER INTERPRETATION AND APPLICATION OF ARTICLE 174 OF THE ESTATUTO DE SERVICIO CIVIL: Despite the decision on the prior grievance, which was upheld by this Court, it is considered important to address the second grievance of the appeal. The appellant also reproaches that the lower court judge incurred in an improper interpretation and application of Article 174 of the Estatuto del Servicio Civil (Law No. 5659 of December 17, 1974, which amended the Ley de Carrera Docente No. 4565 of May 4, 1979). In their opinion, the rule has been improperly applied to the specific case, which, as relevant, reads as follows: \"Article 174....a) If the public servant, at the moment of going on sick leave due to illness or maternity, was earning additional salary for location differential (zonaje), for \"alternate schedule\", or any other supplementary salary, shall have the right to a benefit equivalent to the total salary they were earning at that moment.
They indicate that, as can be observed, this rule regulates matters concerning those officials on sick leave or maternity leave, for whom the payment of all and every salary component recognized to them at the moment the leave is granted must be maintained. In their opinion, this rule does not regulate the issue of teachers who are placed in administrative duties due to health problems, because as a result of their condition, they cannot practice teaching. That although there is a common factor, i.e., a disabling illness, except for maternity leave, the legal subject of the rule is different and, therefore, the general and abstract hypothesis enshrined in these rules applies to factual scenarios of a diverse nature, given that the circumstances they protect are different. That according to the above, it is clear that Article 174 of the Estatuto del Servicio Civil cannot be applied restrictively in all those cases where we find ourselves in the presence of officials who have been reassigned for health reasons; furthermore, if the additional duties are not effectively carried out during the workday, there is no sufficient factual basis to justify the payment claimed.
Similarly, they allege that additional duties, contrary to what was decided by the lower court judge, do not constitute acquired rights or subjective rights for the official, nor consolidated legal situations, but merely an expectation, which will depend on the maintenance of the circumstances that originated the appointment to the additional duty and on the need to assign it to satisfy the public interest and the educational service, as established by section 113 of the Ley General de la Administración Pública. That for this reason, the contested judgment incurs a direct violation of Article 15 of the Ley de Salarios de la Administración Pública and Article 56 of the Ley contra la Corrupción y el Enriquecimiento ilícito en la Función Pública. Thus, the appellant reiterates that it is evident that Article 174 of the Estatuto de Servicio Civil does not apply to the present case to support the validity of the plaintiff's claim.
They also alleged within the first grievance, but which for the sake of order is better dealt with within this second grievance,
They further reproach at this point, as was also argued in the response to the complaint, that it must be taken into account that the additional duties (recargos de funciones) assigned to the teaching staff of the MEP, as the word itself implies, constitute the additional economic salary remuneration to their base salary, for the personal provision of a complementary service and due to a need that temporarily arises in a given educational center. It is the Director of the educational center who proposes a certain educator to work it if there is a need for the service, and it subsequently must have the approval of the Directorate of Human Resources of the MEP. In the field of teaching, this type of remuneration arises due to the existence of different circumstances, one of them being the increase in enrollment in educational centers, and therefore they must attend two sections, one in the morning and another in the afternoon; but not all educators are assigned this additional duty, as there is not always an additional section of students that must be attended due to enrollment factors in each School Year. From this point of view, the teaching official must carry out the functions inherent to their permanent position, and evidently, for the payment of additional duties (recargos de funciones) to be recognized, it logically requires the personal provision of the service for which the assignment of the additional duty becomes necessary. And contrary to what the plaintiff thinks, this type of additional duty and the corresponding supplementary salaries are not incorporated into the salary compensation as if it were just another salary component; quite the opposite, additional duties are assigned due to the need to guarantee the continuity of the educational programs implemented by the Ministry of Public Education and which are directed at different sectors of the Costa Rican population.
As already indicated in the preceding lines, this Court does not share the substantive thesis put forth by the appellant regarding an alleged misinterpretation and application of section 174 of the Estatuto de Servicio Civil by the lower court judge, for the reasons set forth below. First, it must be noted that section 254 of the Código de Trabajo establishes the employer's obligation to reinstate the worker to their position when discharged after having suffered an occupational hazard, provided they are capable of working, or failing that, when they have suffered a diminution of their faculties or aptitudes for work, arising from occupational hazards or illness, they must be reassigned to another position that allows them to continue with their active working life.-
In effect, the appealed decision is based on Articles 167, 173, and 174 of Law No. 5659 of December 17, 1974, which amended the Ley de Carrera Docente No. 4565 of May 4, 1970. These articles are set forth below; however, it is necessary to point out that Article 167 was already repealed by Article 2 of the Ley de Reforma al Sistema de Pensiones del Magisterio Nacional No. 7531, of July 10, 1995).
\"Article 174.
a) If the public servant, at the moment of going on sick leave due to illness or maternity, was earning additional salary for location differential (zonaje), for \"alternate schedule\", or any other supplementary salary, shall have the right to a benefit equivalent to the total salary they were earning at that moment.
b) Sick leaves, regardless of their duration, shall not interrupt the right that public servants have to receive the corresponding salary increases. Thus amended by Article 1 of Law No. 5659, of December 17, 1974.
c) For all legal purposes, both the benefit and the aids referred to in Article 167 shall have the character of salary, and shall consequently be the basis for the calculation of pensions and legal benefits, among other items, that may correspond. Thus added this subsection c) by Article 1 of Law No. 6110, of November 9, 1977\".
\n\n (boldface added).\"Article 167.
When the teacher or professor has been admitted to official institutions, or recognized private ones, for treatment of incapacitating illnesses, as well as in the case of any illness implying indefinite disability, the employee shall be granted leave and shall be paid an allowance equal to the entirety of their salary, for the duration of their incapacity, whether because the patient must remain isolated or in treatment ordered by the head of the respective institution.\"
Now, in Chapter IX of the Civil Service Statute, we find several rules regarding leaves, among them sick leaves, which, regardless of whether they are total permanent or special, find application in the content of article 174 under study, a provision that establishes in its subparagraphs a) and b) general rules for cases of incapacity; which in turn has been recognized as such by case law, stating:
\"Subparagraph b confirms and complements that right, which is not interrupted during sick leaves (...). To hold otherwise would be to disregard the spirit of the rule in its entirety, for the rule confers the right that an official incapacitated by illness has to see, among other supplemental salary components, the so-called 'alternate schedule' increased as the cost of living rises, in order not to affect purchasing power. By legal imperative, the defendant is obligated to submit to the legal system, and there is no justification authorizing the State not to increase the 'alternate schedule' in accordance with the increase in the cost of living.\" Second Chamber of the Supreme Court has also stated: \"(…) But it must be taken into account that in either case, the content of article 174 finds application, which establishes in its subsections a) and b) general rules for cases of incapacity, as follows: \"a) If the employee, at the time of becoming incapacitated due to illness or maternity, is receiving additional salary for zone allowance, for 'alternate schedule,' or any other supplemental salary component, they shall be entitled to a subsidy equivalent to the total salary they were receiving at that moment; b) Sick leaves, whatever their duration, shall not interrupt the right of employees to receive the corresponding salary increases; c) For all legal purposes, both the subsidy and the allowances referred to in article 167 shall have the character of salary and shall, consequently, be the basis for calculating pensions and legal benefits, among other items, that may correspond.\" (Second Chamber, Voto N° 395 of 9:25 a.m. on May 20, 2005. See also Voto N° 1102, of 9:35 a.m. on November 30, 2006. See also and Voto 2007-091 of 09:30 a.m. on February 16, 2007). (highlighting was supplied).
The issue discussed here has been the subject of analysis and study on several occasions, including by the Second Chamber of the Supreme Court of Justice, the jurisdictional body that hears labor matters in the last instance and, therefore, issues the case law that must serve as a guide and guideline for the labor courts of this country, in accordance with the provisions of article 9 of the Civil Code in relation to article 5 of the Organic Law of the Judicial Branch, which, although not binding, the undersigned share the criterion of. Within the legal framework and the cited case law, we have that the Administration's conduct must be provided for and regulated by written rule, with full submission to the Constitution, the law, and all other rules of the legal system, in compliance with the Principle of Legality, which entails a special form of binding of public authorities and institutions to the legal system and, consequently, the Administration is only permitted what is constitutionally and legally authorized in an express manner, and what is not thus regulated or authorized is prohibited to it. (in this regard, see the Votos of the Constitutional Chamber, N°1463-90, 405-91, 425-91, 619-91, 466-93 and 6663-95 and, of this Second Chamber, N° 265-94, 267-97, 240-98, 84-99 and 118-99), so the appellant's argument cannot be entertained, since article 174 refers to those employees who under no circumstances can perform any work function. It cannot be overlooked that all incapacities, whether temporary or permanent —lesser or partial— are based on an illness, and that the subsidy received under such circumstances has a wage nature, which is duly indicated in subparagraph c.) of article 174: \"For all legal purposes, both the subsidy and the allowances referred to in article 167 shall have the character of salary.\"
Furthermore, in this particular case, we must fully adhere to the content of the cited provision 174, under which if the employee at the time of becoming incapacitated was receiving additional salary for alternate schedule, as is the case at hand, they are entitled to receive the equivalent of their total salary they were receiving at that moment, without the sick leave, whatever its duration, interrupting their right to receive it, just as the cited rule provides in order not to affect the purchasing power of the incapacitated official.
Now, for the resolution of this dispute, we must first bring in what is set forth in article 174 of the Civil Service Statute, which reads: \"a) If the employee, at the time of becoming incapacitated due to illness or maternity, is receiving additional salary for zone allowance, for 'alternate schedule,' or any other supplemental salary component, they shall be entitled to a subsidy equivalent to the total salary they were receiving at that moment. b.) Sick leaves, whatever their duration, shall not interrupt the right of employees to receive pending salary increases. c.) For all legal purposes, both the subsidy and the allowances referred to in article 167 shall have the character of salary, and shall be consequently, the basis for calculating pensions and legal benefits, among other items, that may correspond.\" (highlighting is not part of the original).\n\nIn the present case, the conclusion is reached that we would be facing a case of incapacity declared for a female official, and not under the controversial thesis of cases in which there are position transfers for health reasons, for example to an administrative position, which appears to be the thesis held by the appellant, when in reality, on the merits, the judge grants the claims of the lawsuit because the plaintiff was incapacitated, which is the clear premise indicated by the rule, and granted her the payment of the additional payments (pluses) which, in her opinion, the plaintiff was indeed enjoying at the time she was incapacitated, an aspect that was already resolved in favor of the appellant in the preceding point.\n\nThus, from the study and analysis of the particular case, and the literal wording of the rule -174 ibidem- if the conditions for it had been met, there would have existed an express rule authorizing the payment of the total salary that was being earned, that is, the base salary plus the additional pays (sobresueldos) recognized and incorporated into the educator's patrimony up to that moment, at the time of being incapacitated, she would have had the right to continue earning the same salary, whether for additional salary (salario adicional), for zone pay (zonaje), for alternate schedule (horario alterno) or any additional pay (sobresueldo), as the referenced rule clearly states, making this grievance of the appeal inadmissible.\"\n\nThus, the appellant reiterates that it is evident that article 174 of the Civil Service Statute does not apply to the present case, in order to uphold the admissibility of the plaintiff's claim.\n\nThey also alleged within the first of the grievances, but which for reasons of order is better addressed within this second grievance,\n\nThey further reproach at this point, as was also argued with the statement of defense, that it must be taken into account that the additional function allowances (recargos de funciones) assigned to MEP teaching staff, as the word itself implies, constitute additional salary-based economic remuneration to their salary, for the personal provision of a complementary service and due to a need that arises temporarily in a specific educational center, and it is the Director of the educational center who proposes a certain educator to perform it if there is a need for the service, and it must subsequently have the approval of the MEP Human Resources Directorate. That in the field of teaching, this type of remuneration arises from the existence of different circumstances, one of them being the increase in enrollment in educational centers, and therefore they must attend two sections, one in the morning and another in the afternoon, but not all educators are assigned this additional function allowance, since there is not always an additional section of students that must be attended to due to enrollment factors in each Academic Year. That from this point of view, the teaching official must carry out the functions inherent to their permanent position and, evidently, for the payment of additional function allowances to be recognized, it is logically required that the personal provision of the service for which it becomes necessary to assign the allowance be fulfilled. And that contrary to what the plaintiff thinks, this type of allowance and the corresponding supplementary salaries (sobresueldos) are not incorporated into the salary compensation as if it were just another salary component; quite the opposite, the allowances are assigned due to the need to guarantee the continuity of the educational programs implemented by the Ministry of Public Education and which are directed at different sectors of the Costa Rican population.\n\nAs already indicated in previous lines, this Court does not share the underlying thesis put forth by the appellant, regarding an alleged erroneous interpretation and application of numeral 174 of the Civil Service Statute by the lower-court judge (juez a-quo), for the reasons set forth below. Firstly, it must be noted that numeral 254 of the Labor Code establishes the employer's obligation to reinstate the worker to their position when they are discharged after having suffered a work-related risk, provided they are able to work, or failing that, when they have suffered a decrease in their faculties or aptitudes for work, arising from work-related risks or illness, they must be relocated to another position that allows them to continue with their active working life.-\n\nIndeed, the appealed judgment is based on articles 167, 173, and 174 of Law No. 5659 of December 17, 1974, which amended the Teaching Career Law No. 4565 of May 4, 1970. Numerals that are recited below; however, it is necessary to point out that article 167 was already repealed by article 2 of the Law Reforming the National Teachers' Pension System No. 7531, of July 10, 1995).\n\n\"Article 174.\na) If the employee, at the time of becoming disabled due to illness or maternity, was earning additional salary for location allowance (zonaje), for \"alternate schedule\" (horario alterno), or any supplementary salary (sobresueldo), they shall be entitled to a subsidy equivalent to the total salary they were earning at that time.\nb) Sick leave, whatever its duration, shall not interrupt the right that employees have to receive the corresponding salary increases. Thus reformed by article 1 of Law No. 5659, of December 17, 1974.\nc) For all legal purposes, both the subsidy and the aids referred to in article 167 shall have the character of salary, and shall consequently be the basis for the calculation of pensions and legal benefits, among other items, that may apply. Thus added this subsection c) by article 1 of Law No. 6110, of November 9, 1977\". (the boldface was added).\n\n\"Article 167.\nWhen a teacher or professor has been interned in official institutions, or recognized private ones, for treatment of disabling illnesses, as well as in the case of any illness implying indefinite disability, a leave shall be granted to the employee and they shall be paid an aid equal to the entirety of their salary, for the term that their disability lasts, whether because the patient must remain isolated or in treatment ordered by the head of the respective institution\"\n\nNow then, in chapter IX of the Civil Service Statute, we find several rules referring to leaves, among them sick leaves, which, regardless of whether they are total permanent or special, find application in the content of article 174 under study, a numeral that establishes in its subparagraphs a) and b) general rules for cases of disability; which in turn has been recognized as such by case law, stating:\n\n\"Subsection b) confirms and complements that right which is not interrupted during sick leaves (...). To consider the opposite would be to disregard the spirit of the rule in its entirety, since the rule confers the right that an official disabled due to illness has to see, among other supplementary salaries, the so-called \"alternate schedule\" increased as the cost of living increases, in order not to affect purchasing power. By legal imperative, the defendant is obliged to submit to the legal system, and there is no justification authorizing the State not to increase the \"alternate schedule\" in accordance with the increase in the cost of living.\" Chamber II has also stated: \"(...) But, it must be taken into account that in either case, the content of article 174 finds application, which establishes in its subsections a) and b) general rules for cases of disability, as follows: \"a) If the employee, at the time of becoming disabled due to illness or maternity, was earning additional salary for location allowance, for \"alternate schedule\", or any supplementary salary, they shall be entitled to a subsidy equivalent to the total salary they were earning at that time; b) Sick leave, whatever its duration, shall not interrupt the right that employees have to receive the corresponding salary increases; c) For legal purposes, both the subsidy and the aids referred to in article 167 shall have the character of salary and shall consequently be the basis for the calculation of pensions and legal benefits, among other items, that may apply\" (Chamber II, Voto N° 395 of 9:25 a.m. on May 20, 2005. You may also consult Voto N° 1102, of 9:35 a.m. on November 30, 2006. You may also consult Voto 2007-091 of 09:30 a.m. on February 16, 2007). (the highlighting was supplied).\n\nThe issue discussed here has been the subject of analysis and study on several occasions, including by the Second Chamber of the Supreme Court of Justice, the jurisdictional body that hears cases in the last instance in labor matters and, therefore, issues the case law that must serve as a guide and guideline for the labor courts of this country, in accordance with the provisions of article 9 of the Civil Code in relation to article 5 of the Organic Law of the Judicial Branch, which, although not binding, the criterion is shared by the undersigned. Within the legal framework and the cited case law, we have that the conduct of the Administration must be foreseen and regulated by written rule, with full submission to the Constitution, to the law, and to all the other rules of the legal system, in compliance with the Principle of Legality, which entails a special form of binding public authorities and institutions to the legal system and, consequently, the Administration is only permitted what is constitutionally and legally authorized expressly, and what is not regulated or authorized to it is prohibited. (in this regard, you may consult the Votos of the Constitutional Chamber, N°1463-90, 405-91, 425-91, 619-91, 466-93 and 6663-95 and, of this Second Chamber, N° 265-94, 267-97, 240-98, 84-99 and 118-99), therefore the appellant's allegation cannot be considered, since article 174 refers to those employees who cannot under any circumstances fulfill any work function. It cannot be ignored that all disabilities, whether temporary or permanent - minor or partial - are based on an illness, and that the subsidy received under such circumstance has a salary nature, which is duly indicated in subsection c.) of article 174: \"For all legal purposes, both the subsidy and the aids referred to in article 167 shall have the character of salary\".\n\nOn the other hand, in this particular case, we must strictly abide by the content of the cited numeral 174, under which if the employee, at the time of becoming disabled, was earning additional salary for an alternate schedule, as turns out to be the case at hand, they have the right to receive the equivalent of their total salary that they were earning at that time, without the sick leave, whatever its duration, interrupting their right to receive it, as the referenced rule provides in order not to affect the purchasing power of the disabled official.\n\nNow, for the resolution of this dispute, it is necessary to first refer to what is stated in Article 174 of the Civil Service Statute, which reads: *“a) If the public servant, at the time of becoming disabled due to illness or maternity, was earning additional salary for zonaje, for “alternate schedule” (“horario alterno”), or any other supplementary pay (sobresueldo), they shall be entitled to a subsidy (subsidio) equivalent to the total salary they were earning at that time. b.) Sick leave (licencias por enfermedad), whatever its duration, shall not interrupt the right of public servants to receive pending salary increases. c.) For all legal purposes, both the subsidy and the aid referred to in Article 167 shall have the character of salary, and shall consequently be the basis for the calculation of pensions and legal benefits, among other aspects, that may correspond”* (the highlighting is not part of the original). In the present case, the conclusion is reached that we are facing a case of declared disability for a female official, and not under the controversial thesis of cases in which there are transfers of the post for health reasons, for example to an administrative post, which appears to be the thesis held by the appellant, when in reality, on the merits, the judge grants the claims of the lawsuit because the plaintiff was declared disabled, which is the clear premise indicated by the norm, and granted her the payment of the bonuses (pluses) which, in her opinion, the plaintiff was indeed enjoying at the time she was declared disabled, an aspect that was already resolved in favor of the appellant in the previous point.\n\nThus, from the study and analysis of the particular case, and the literal wording of the norm -174 ibidem- had the assumptions for it occurred, there would have been an express norm that authorizes the full payment of the total salary being earned, that is, the base salary plus the supplementary pay (sobresueldos) recognized up to that moment and incorporated into the educator’s assets, at the time of being declared disabled, she would have had the right to continue earning the same salary, be it for additional salary, for zonaje, for alternate schedule (“horario alterno”) or any supplementary pay (sobresueldo), as the norm of reference rightly states, making this grievance of the appeal unworthy of consideration.”" }