Constitution of Brazil, 1988, (in English including amendments until Constitutional Amendment 52 of 2006 (Chapter II)) Date: 08 Mar 2006; view website » (view in NATLEX»)
Consolidation of Labour Laws [CLL], Decree Law No. 5452 (1093), as last amended by Act No 12347 of December 2010. [Decreto-ley núm. 5452, de 1° de mayo de 1943, por el que se aprueba la Codificación de las Leyes del Trabajo texto compilado - in Portuguese only] Date: 10 Dec 2010; view website »
Act No. 8036 of 11 May 1990 on the Guarantee Fund for Time of Service, as last amended by Act No. 12058 of 13 October 2009 [Lei 8.036, de 11 de maio de 1990 Dispõe sobre o Fundo de Garantia do Tempo de Serviço, e dá outras providências - in Portuguese only] Date: 13 Oct 2009; view website »
Act No. 9029 of 13 April 1995 (on prohibition of discriminatory practices in employment) last amended by Act 12288 of 2010 - [in Portuguese only] Date: 20 Jul 2010; view website »
Obligation to provide reasons to the employee: No
Valid grounds (justified dismissal): none
Under the CLL, either party can terminate a contract of indefinite duration at will by observing notice requirements. (art. 499 CLL). In addition, an employer who dismisses an employee without cause has to pay a specific compensation (see remarks under severance pay). The 1988 Constitution provides for the right of rural and urban workers to be "protected against arbitrary dismissal or against dismissal without just cause, according to a supplementary law which shall establish termination pay, among other rights" which is implemented through the FGTS system (Act No. 8036 of 1990). Employee's protection therefore lies in the right to receive termination payment ("verbas rescisórias"). Certain categories of employees enjoy job stability and therefore can only be dismissed for serious reasons (see "workers enjoying special protection"). In cases where the employee has committed one of the grave misconducts enumerated under the CLL, the employment relationship may be terminated by way of "dismissal for just cause" (art. 482 CLL) The acts entailing dismissal for just cause include: deceit; misconduct; breach of discipline or insubordination; criminal conviction (except if the sentence is suspended), habitual drunkenness or drunkenness while on duty; disclosure of trade secrets; neglect of duty; performance of acts that damage the reputation of the employer or third parties; if it is established by an administrative inquiry that the employee is guilty of acts which are detrimental to national security. In such cases, notice and compensation requirements shall not be observed.
Prohibited grounds: marital status; pregnancy; maternity leave; family responsibilities; temporary work injury or illness; race; colour; sex; social origin; age; trade union membership and activities; participation in a lawful strike; ethnic origin
- Pregnant employees enjoy job stability and cannot be dismissed except for serious reasons from the date the pregnancy is confirmed until five months after confinement (this covers the duration of maternity leave which is 120 days) (art. 10(IIa) Constitution, Transitional Provisions). See also Act 9799 of 1999, which prohibits any form of discrimination against women in employment (including on the grounds of pregnancy). - Act No. 9029 of 13 April 1995 prohibits discrimination practices on the basis of sex, origin, race, colour, marital status, family status or age, in respect of access to employment or termination of employment. - Security of employment is guaranteed through reinstatement to employees who, because of an employment accident or occupational disease, were obliged to suspend the employment relationship (Act No. 8213 of 24 July 1991). -The Constitution prohibits the dismissal of a unionized employee, except on account of a serious misconduct from the moment he or she registers as a candidate for a leadership or representative position in a trade union and for one year thereafter (art. 8(VIII) Constitution). - Dismissal of workers involved in a strike is prohibited expect in the event of an abuse of the right to strike (Act 7783 of 1989, art. 7).
Workers enjoying special protection: workers' representatives; pregnant women and/or women on maternity leave; workers with a long period of service; workers on temporary leave following an occupational disease or a work injury
- The Constitution prohibits the dismissal of a unionized employee, except on account of a serious misconduct from the moment he or she registers as a candidate for a leadership or representative position in the trade union and for one year thereafter (art. 8(VIII), Constitution). If the Court declares the dismissal unjustified, such category of employee has the right to reinstatement. - The Constitution also prohibits arbitrary dismissal or dismissal without cause of Workers' representatives on the Internal Accident Prevention Commission from the date of registration as a candidate until one year after the end of his or her term of office (art. 10(IIa), Constitution, Transitional Provisions). The CLL also provides that if the employer fails to prove the existence of disciplinary, technical, economic or financial reasons before the Court, those employees shall be reinstated (art. 165 CLL). - Pregnant workers also enjoy job stability and can therefore not be dismissed except for serious reasons from the date the pregnancy is confirmed until five months after confinement. (art. 10(IIa) Constitution, Transitional Provisions). - Until the adoption of the 1988 Constitution, workers with at least ten years of service enjoyed job security and could only be dismissed on the grounds of a serious offense or force majeure upon authorization from the Labour Court. For those workers who have acquired the right of security of tenure after ten years of service before the adoption of the 1988 Constitution (= those hired before 1978), the job security provisions of the CLL are still applicable. Dismissals are prohibited except on account of a serious offence or force majeure (art. 492 CLL). If none of those grounds are proved, they are entitled to reinstatement or compensation in lieu of reinstatement. - Security of employment is guaranteed through reinstatement to employees who, because of an employment accident or occupational disease, were obliged to suspend the employment relationship (Act No. 8213 of 24 July 1991).