Dismissal with cause (“demissão por justa causa”) is a sensitive and important topic in Brazilian labor law. It occurs when an employee commits a serious offense outlined in the Consolidated Labor Laws (CLT). Understanding the reasons, the correct procedure, and the necessary precautions is crucial for companies to avoid legal issues and for employees to know their rights.
Reasons Justifying Dismissal with Cause
The CLT clearly defines the reasons that can lead to dismissal with cause. Some of these reasons include:
- Dishonest act: Dishonesty, theft, or fraud.
- Misconduct or improper behavior: Inappropriate behavior or improper conduct in the workplace.
- Habitual negotiation: Conducting negotiations on one’s own behalf without the employer’s permission, resulting in competition or damage to the company.
- Criminal conviction: When the conviction makes it impossible to continue the employment relationship.
- Negligence in performance of duties: Performing tasks with laziness, unwillingness, lack of care, effort, or imprudence.
- Habitual drunkenness or on duty: Chronic alcoholism or intoxication during work hours.
- Violation of company secrets: Disclosure of confidential company information.
- Acts of insubordination or disobedience: Failure to comply with orders.
- Abandonment of employment: Unjustified absence from work.
- Physical offenses: Aggression towards colleagues or superiors.
- Damage to honor and good reputation: Defamation or slander.
- Constant gambling: Habitual gambling that may be harmful.
- Acts against national security: Actions that threaten the security of the country.
Procedure for Dismissal with Cause
To carry out a dismissal with cause, a specific procedure must be followed:
- Identifying the Offense: The offense committed by the employee must be clearly identified.
- Communication to the Employee: The employee must be formally notified of the dismissal.
- Termination of the Contract: The employment contract is formally terminated.
Proper Documentation
Documentation is fundamental to this process. It is essential to have:
- Detailed reports and records of the offenses committed by the employee.
- Application of prior warnings and suspensions, when applicable. This demonstrates that the company attempted to correct the improper behavior.
Clear Communication
The communication of the dismissal must be clear and formal. It is preferable to deliver a written notice, specifying the reasons for the dismissal with cause. Whenever possible, the communication should be done in person and in the presence of witnesses.
Proportionality and Immediacy
Two important principles govern the application of dismissal with cause:
- Proportionality: The offense must be serious enough to justify dismissal.
- Immediacy: The measure must be taken immediately after the offense is discovered.
Rights of the Employee Dismissed with Cause
In a dismissal with cause, the employee is entitled to receive:
- Salary balance: For the days worked and not paid until the termination date.
- Accrued vacation, if any: Vacation time that has been acquired and not taken.
Rights Lost by the Employee
The employee dismissed with cause loses the following rights:
- Notice period.
- 40% FGTS (Guarantee Fund for Length of Service) penalty.
- Withdrawal of the FGTS balance.
- Proportional 13th salary.
- Proportional vacation.
Important Precautions and Recommendations
To avoid legal problems, it is crucial to take some precautions:
- Consult a labor lawyer: Seeking legal advice is essential to ensure that all procedures are followed correctly and that the documentation is in order.
- Manager training: It is important to train managers and supervisors on labor legislation and disciplinary procedures, including the application of dismissal with cause.
- Clear internal policy and code of conduct: Having a code of conduct and internal policies accessible to all employees helps define behavioral expectations and the possible consequences for infractions.
- Avoid discrimination and harassment: The application of dismissal with cause must be impartial and not based on discrimination or harassment. All employees must be treated fairly.
- Preparation for potential litigation: Be prepared for a possible legal challenge by keeping all documentation well organized and identifying witnesses who can corroborate the employee’s offense.
- Review and verification of documentation: Before finalizing the dismissal, carefully review all documentation to ensure there are no errors or omissions that could be used against the company in a legal dispute.
- Employee support: Offer support to the employee at the time of dismissal, informing them of their rights, even if reduced by the cause, to demonstrate the company’s good faith.
Conclusion
Dismissal with cause is a delicate process that requires attention to many details. Following the procedures correctly and taking the necessary precautions can help the company avoid legal complications and maintain a fair and safe work environment.