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Portugal - Voies de recours et procédure contentieuse en cas de litiges individuels

Voies de recours et procédure contentieuse en cas de litiges individuels - Portugal - 2014    

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Compensation pour licenciement injustifié - montant librement déterminé par la cour: Non

  • Art. 391 and 392 LC.

Compensation pour licenciement injustifié - limites légales (plafond en mois ou methode de calcul définie):
- In the event of unlawful dismissal (failure to comply with the applicable procedural requirements, dismissal based on political, ideological, ethnic or religious reasons and if the reasons invoked are considered unlawful):
If the employee chooses compensation rather then reinstatement. The amount of such compensation shall be between 15 and 45 days of basic salary and seniority awards for each full year or fraction of year of service, depending of criterion such as: the level of the salary and the degree of unlawfulness of the dismissal but not less than 3 months' wages.
(The employee is also entitled to back pay from the date of the dismissal until the date of the court's final decision)

- In the event of minor procedural irregularities, the employee is only entitled to compensation in the amount of half of the above mentioned amounts (= 7.5 to 22.5 days for each year of service but not less than 1.5 months)

- In the case of an unlawful dismissal in enterprises with fewer than 10 workers or of a worker holding a managerial position, if the employer opposes the reinstatement and the Court accepts it, compensation in lieu of reinstatement is between 30 and 60 days of wages for each year of service but not less than 6 months' wages.

Possibilité de réintégration dans l'emploi: Oui

  • Reinstatement is the ordinary remedy available to the employee in the event of unlawful dismissal (see definition above) in addition to compensation for material and non-material damages unless he/she opts for compensation in lieu of reinstatement (see above).
    However in enterprises with fewer than 10 workers or in the event of a worker holding managerial functions, the employer may oppose the reinstatement if he/she can demonstrate that the return of the worker would be seriously prejudicial and disruptive to the functioning of the enterprise. This faculty to oppose reinstatement is not given to the employer whenever it is proven that he deliberately invented the grounds for that opposition and in the event the dismissal was based on political, ideological, ethnic or religious grounds. If the employer's request is accepted by the Court, employees will only be entitled to compensation (art. 392 LC)

    In addition, reinstatement is not available in the case of minor procedural irregularities (art. 389(1) LC).

Conciliation préalable obligatoire: Oui

  • Preliminary conciliation by the judge is required in the initial phase of the hearings (art. 98 -I of the Code of Labour Procedure, as introduced by the Decree Lay N° 198 of 2009, and art. 52-53 of that Code).

Courts ou tribunaux compétents: tribunal du travail

  • The Labour courts have exclusive jurisdiction over dismissal cases (see Code of Labour Procedure and art. 387 LC).
    Any legal action challenging the regularity and the fairness of an individual dismissal shall be brought within 60 days of receipt of the dismissal decision or of the date of termination of the contract . (Note that under the 2003 LC, this timeframe was 1 year). The Decre-Law 295/2009 of 13 October 2009 introduced in the Code of Labour Procedure, new proceedins of an urgent nature to be observed in the event of a legal action challenging an individual dismissal (art. 98-B to 98-P LC).

    (Any action challenging collective dismissals must be lodged wihin 6 months of the date of termination of the contract: art. 388(2) LC)

Règlement des litiges individuels par arbitrage: Non

  • No alternative arbitration. However, there is a national Labour Mediation System the parties can refer their dispute to.
    See information found on secondary source (Eurofound, EIROnline, Portugal: Individual disputes at the workplace ¿ alternative disputes resolution, Author: Reinhard Naumann, 10 February 2010):
    On May 5th 2006 the Ministry of Justice and all peak organisations with access to the Standing Commission for Social Concertation (CPCS) signed a protocol for the creation of a Labour Mediation System (SML). In December 2006 the SML began to operate in the Metropolitan Areas of Lisbon and Porto. Since 2007 it has been extended to the complete territory of continental Portugal (except Madeira and the Azores). (...)
    The SML is entitled to deal with all kinds of labour disputes, except those related to work accidents and to inalienable and indispensable rights. The Ministry of Justice and UGT give the following examples for the intervention of the SML:
    conflicts related to the payment of compensations to be paid to dismissed employees and to other aspects of the cessation of a work contract,disputes regarding the transfer of an employee from one workplace to another or about his/her promotion,disputes about work schedules and the scheduling of company holidays, and
    the juridical nature of a work contract.
    According to UGT, most of the conflicts resolved by the SML are related to payments (of compensations, salaries etc.).