Government wants to simplify dismissals for just cause. Proposal can be unconstitutional

Another controversial proposal that is contained in the revision of the labor law: the government wants to make the dismissal of workers for just cause. The goal is to end the obligation to present the evidence or hear witnesses requested by the worker before the dismissal.

The Executive proposes that companies can simplify goodbye for just causefor facts imputable to the worker, failing to present evidence requested by the worker or hear witnesses during the disciplinary proceedings.

This applies to companies with less than 250 workers-micro, small and medium enterprises. I.e, More than 99% of the business fabric.

The news is advanced this Tuesday by, who heard experts that warn of the unconstitutionality of this proposal.

In dismissal for just cause, the employer must communicate the intention to dismiss the worker, gathering a note of guilt with the description of the facts that justify him. The worker, in turn, has 10 business days to respond and can gather documents and request that the employer present evidence.

It is foreseen after the employer makes the “probative steps” that were requested by the worker. As the business details, the employer is required to hear three witnesses for each fact described in the guilt note and 10 in total. Then the employer has to present the case to the workers’ commission or a union, which can issue an opinion.

In the current legislation, it is already expected that microenterprises are exempted only from communication to workers’ representatives, but the rest of the instruction process – to realization of the probative steps required by the worker and the hearing of up to 10 witnesses -Applies to companies with less than ten workers.

O Government now proposes to end the instruction article for micro, small and medium companies, allowing companies dismiss workers without presenting evidence required by the worker and listening to the witnesses.

Violation of the right of defense?

As the business recalls in 2009, the Government of José Sócrates It also tried to make the probative steps optional. But at the time, the proposal was declared unconstitutional.

The Constitutional Court considered that the rule that made the instruction optional violav the article that determines that “in the processes of offense, as well as in any sanctioning processes, the defendant are assured Audience and Defense Rights”Considering that the defense was not assured.

“A new solution increases the risk of a wrong disciplinary decisionreferring to a successive judicial moment, something that could be prevented in disciplinary proceedings ”, quotes the morning.

To the same newspaper, João Leal AmadoProfessor of Labor Law at the University of Coimbra, explains that if the employer currently has to hear the witnesses indicated by him, with the new proposal “only listens if you want”.

This raises doubt. Taking into account the 2010 judgment, the expert warns of Risks of Unconstitutionality: “Doubts will continue,” he says.

Reintegration can be eliminated

Another of the measures provided for in the government’s draft (and which is also raising doubts) is the possibility of the employer refusing the reintegration of a worker – even in cases where the court proves that there has been an unlawful dismissal.

This worker illegally fired would be extended to all companies and all functions.

Currently, when the dismissal is unlawful, the employer is ordered to compensate the worker and reintegrate him in the company. In the case of micro -company, the employer may ask the Court to exclude reintegration, replacing it with compensation higher, “based on facts and circumstances that make the return of the worker seriously harmful and disturbing the operation of the company”.

Now this possibility is extended to all companies, regardless of the dimension.

Once again, João Leal Amado considers that at stake is a “symbolic” and “power” measure, with risks of unconstitutionality. “It’s completely subvert the system,” he says.