Procedural requirements for individual dismissals - Portugal - 2014
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- Labour Code (Lei n.º 7/2009) of 12 February 2009, as amended by Law 53/2011 of 14 October 2011, Law 23/2012 of 25 June 2012, Law 47/ 2012 of 29 August 2012, Law 69/2013 of 30 august 2013, Law 27/2014 of 8 May 2014, Law 55/2014 of 25 August 2014 (in Portuguese only)
Date: 25 Aug 2014; view website » (view in NATLEX »)
- Law 76/2013 of 7 November 2013, establishing an additional extraordinary regime of renewal of fixed-term contracts.
Date: 07 Nov 2013; view website »
- Law 3/2012 of 10 January, establishing an extraordinary regime of renewal for fixed-term contracts (in Portuguese only)
Date: 10 Jan 2012; view website »
Notification to the worker to be dismissed: written
- Any dismissal decision shall be in writing.
(see art. 357(3) LC - disciplinary dismissals, art. 378(1) LC - dismissal for unsuitability, art. 371(2) - individual redundancy, and art. 363(1) - collective dismissals)
- The employer must observe a notice period before dismissing an employee in the following cases:
- dismissal for unsuitability (art. 378 LC)
- elimination of the post (individual redundancy)(art. 371 LC)
- collective dismissals for economic reasons (art. 363 LC).
There is no notice requirement when the dismissal is based on the misconduct of the employee.
The notice period is set according to the worker's seniority, as follows:
- 15 days if the length of service is less than 1 years,
- 30 days if the length of service is at least 1 year but less than 5 years;
- 60 days is the length of service is at least 5 years but less than 10 years;
- 75 days from at least 10 years of service.
The LC also provides for specific notice periods in the following cases:
During the probationary period, either party can terminate the contract without notice. As an exception, during that period, advance notice is required after a certain time has elapsed:
- if the probationary period has lasted more than 60 days, the employer is required to observe a 7-day notice.
- if the probationary period has lasted more than 120 days, the employer is required to observe a 15-day notice (art. 114(2) LC).
*Service commission agreements:
A service commission agreement (see above under "workers' categories excluded") which can be concluded with certain categories of workers (mainly those exercising managerial functions) can be terminated without cause provided that the notice requirements are observed. Depending on the period of service under such contract, notice period shall be 30 days (less than 2 years) or 60 days (2 years or more). (see arts. 163 LC).
- tenure ≥ 6 months
- tenure ≥ 9 months
- tenure ≥ 2 years
- tenure ≥ 4 years
- tenure ≥ 5 years
- tenure ≥ 10 years
- tenure ≥ 20 years
Pay in lieu of notice: No
- The LC does not allow for pay in lieu of notice in the event of an individual dismissal.
(Please note that for collective dismissals, art. 363(4) provides that if the employer does not comply the notice period, the employment contract will not terminate immediately but only at the expiry of the statutory notice period (as if notice requirements have been observed) and the employer has to pay compensation equal to the salary corresponding to the missing period of notice. This rule also applies to dismissal for unsuitability (art. 372 LC).
Notification to the public administration: Yes
- There is no general requirement to notify the administration in the event of a disciplinary dismissal (except for the dismissal of protected workers (i.e pregnant women or workers on parental leave - see above).
However, the administration is always notified in the event of dismissal for unsuitability of the worker or individual redundancy since a copy of the dismissal decision shall be sent to the relevant services of the Ministry of Labour (art. 378(2) and 371 (3) LC).
In addition, in case of individual redundancy, the administration may be involved at an earlier stage (and not only at the time of the final decision). Indeed, in the course of the consultation procedure, the workers' representatives or the workers affected (and the trade union if a union member is affected by the dismissal) may, within 3 working days, after the initial communication request the intervention of the Labour inspection. If such request is made, the Labour inspection will verify compliance with the applicable statutory requirements and present a report within 7 days of the reception of the request (art. 370 (2) and (3) LC).
Notification to workers' representatives: Yes
- Intervention of workers' representatives is required in all types of individual dismissals.
Mandatory notification to the employee and the union if the employee is a union representative of the need to terminate the contact based on justified motives, the changes introduced in the workplace, the results of the training and the adaptation period. Lastly, the employer must prove that there are no other positions available in the company compatible with the employee's qualification (art. 376(1) LC).
As from Law 23/2012 the works council (or in its absence the inter-trade union committee) will be informed after 3 days of the notification to an employee who is not a worker representative (this communication had to be notified directly to the works council before this reform).
The works council (together with the employee concerned and the trade union, if applicable) has 10 days to issue a reasoned opinion (art. 377 LC).
Within 5 days after the 10-day period has elapsed, the employer shall issue a substantiated decision, the a copy of which shall be submitted to the employees¿ representatives (art. 378 LC).
- Disciplinary dismissal:
Disciplinary dismissals are always preceded by a formal disciplinary process involving the worker's representatives. A copy of the written statement detailing the reasons for dismissal based on specific facts (statement of guilt - "nota de culpa") shall be submitted to the works council, (and a trade union in case of dismissal of a trade union representative) (art. 353-2 LC) which can within 5 days, submit its (non-binding) opinion on the proposed dismissal (art. 356(5) LC).
The final dismissal decision shall also be communicated to the works council (and the trade union, if applicable). (art. 357(6) LC)
However, the intervention of the works council in disciplinary dismissal does is not applicable in enterprises with less than 10 workers (art. 358(1) LC)
- Elimination of the post (redundancy):
Mandatory notification to the works council (or in its absence the inter-trade union committee) and the union if the employee is a union representative of the necessity to eliminate the position and consequently to terminate the employment contract as well as the reasons behind this decision (art. 369 LC).
The workers' representatives and the employee have 10 days to reply to the proposed dismissal and may within 3 days from the employer's communication request the intervention of the Labour Inspection (art. 370 LC)
Five days after the 10 day period has elapsed, the employer may issue his decision in writing indicating the reasons for the elimination of the post and other elements such as the impossibility to find alternative adequate employment and proof that the selection criteria has been duly observed if objections have been made. A copy of that decision is to be sent to the employee concerned, the worker's representatives and the relevant services of the Ministry of Labour (art. 371 LC)
Approval by public administration or judicial bodies: No
Approval by workers' representatives: No