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Fuentes y ámbito de aplicación - 2014    

Referencias
  • 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)
    Fecha: 25 Aug 2014; ver la pagina web » (ver en NATLEX »)
  • Law 76/2013 of 7 November 2013, establishing an additional extraordinary regime of renewal of fixed-term contracts.
    Fecha: 07 Nov 2013; ver la pagina web »
  • Law 3/2012 of 10 January, establishing an extraordinary regime of renewal for fixed-term contracts (in Portuguese only)
    Fecha: 10 Jan 2012; ver la pagina web »
Ámbito de aplicación
Tamaño de las empresas excluidas (≤): 10
Remarks:
  • There is general exclusion from the Labour Code based on the size of the enterprise.
    However, there are specific rules/exemptions applicable to small enterprises with regard to termination of employment:
    - The disciplinary dismissal procedure in micro enterprises (which defined as those having fewer than 10 workers) is simplified. In particular, under article 358(1) LC, in case of a dismissal of a worker who is not a member of a Worker's Commission or a trade union representative, there is no mandatory intervention by collective worker representation structures in the proceedings as it is the case under the general rules.
    - In addition, with respect to remedies for unfair dismissal in micro enterprises, 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.
    When the opposition to reinstatement is accepted, the employee is entitled to compensation in lieu of reinstatement which is calculated at the court's discretion, between 30 and 60 days of wages for each year of service but shall no be less than 6 months' wages. (art. 392 LC)

Categorías de trabajadores excluidas : funcionarios publicos ; ditectores
Remarks:
  • The Labour Code does not expressly exclude from its entire scope any category of worker.
    However, public servants and public employee are governed by specific rules. In particular establishment and termination of employment of those workers are regulated by Act No 12-A/2008 of 27 February 2008 and Act No 59/2008.
    While certain workers are covered by the system of indefinite appointment (armed forces, security services, criminal investigation services, public safety services and inspection services) in which case, termination of employment is limited, the majority of the workers in the public administration are under a public functions employment contract. For those workers hired after 1 January 2009, the rules applicable to termination of those types of contract are similar to those contained in the labour code. The grounds for termination include collective dismissal, dismissal due to the abolition of the position, unsuitability for the job in addition to disciplinary dismissals.

    In addition, in the Labour Code, there are specific rules applicable to the termination of employment of senior managers.
    First of all, in the case of the dismissal of a workers holding administrative of managerial positions (as it is the case for all workers in micro enterprises - see below), the employer may oppose the reinstatement if it 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.
    When the opposition to reinstatement is accepted, the employee is entitled to compensation in lieu of reinstatement which is calculated at the court's discretion, between 30 and 60 days of wages for each year of service but shall no be less than 6 months' wages. (art. 392 LC)
    Lastly, it is worth mentioning that the LC allows for specific contracts (temporary service commission contracts - contrato de trabalho em comissão de serviço) to be concluded with a certain number of workers. These are: managing directors, support personnel and secretarial positions connected with those positions, and other functions provided under collective regulatory instrument which imply a special relationship based on trust. In addition to those categories already included in the 2003 LC, the 2009 LC extended this type of contracts to workers performing managerial functions directly under the general manager, or equivalent (second-line managers). The main feature of this service commission contract is that it can be terminated by either party without the need for a valid reason provided that the notice and severance pay 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). Alternatively, if no notice is given, workers are entitled to pay in lieu of notice. Lastly, if the service commission contract is terminated by the employer without any wrongdoing of the worker, the worker will be entitled to severance pay equal to 1 month's pay for each full year of service but not less than 3 months' pay (see arts. 161-164 LC).

Tipos de contratos de trabajo - 2014    

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Duración maxima del periodo de prueba: 240 día(s)

Remarks:
  • With respect to the duration of the probationary period, the LC distinguishes between the type and the duration of the contract (fixed-term or open-ended) and the category of workers concerned (art. 112 LC).
    1) Contract of indefinite duration (open-ended contract):
    - As a general rule, the standard statutory duration of the probationary period shall be 90 days.
    - It is extended to 180 days for employees who hold positions of a complex technical nature, with high degree of responsibility, or which require special qualifications, as well employees in a position of trust.
    - The probationary period is 240 days for managers or senior executives. (art. 112(1) LC)

    2) Contract of definite duration (fixed-term contract):
    For FTCs, the length of probationary period depends on the duration of the contracts. It is:
    - 30 days in the event of a FTC concluded for at least 6 months;
    - 15 days in the event of a FTC with a fixed date of expiry is concluded for less than 6 month or in the event of an FTC with an uncertain term if the expected duration does not exceed that limit. (art. 112(2) LC)

    In addition for service commission contract which can be concluded with some categories of workers holding managerial functions (see above the remarks under "worker's categories excluded"), the length of the probationary period depends on the stipulations of the contracts but must not exceed 180 days. (art. 112(3) LC)

    The probationary period can be excluded or reduced by written agreement of the parties. It can also be reduced by collective agreement (but not excluded) (art. 111(3) and 112(5) LC)
    During the probationary period, either party may unilaterally terminate the contract, without prior notice of need to invoke just cause. Unless expressly provided in the contract, there is no right of compensation for termination during that period. (art. 114 LC)

Contrato de duración determinada (CDD):
  • FTC regulated: Si
    Remarks:
    • FTCs are regulated in arts. 139-149 LC. The LC establishes a distinction between FTCs with a fixed date of termination (certain term) and those which date of expiry is not known in advance (uncertain term).

      It is worth noting that the statutory rules on FTCs contained in the LC may be waived or modified by collective agreement, with the of the possibility to conclude FTCs with workers seeking their first employment or long-term unemployed workers and the rules concerning the maximum (cumulative) duration of FTCs (art. 139 LC).
  • Razones de utilización legítima de CDD: razones materiales y objetivas
    Remarks:
    • According to art. 140(1) LC, FTCs are only allowed to satisfy temporary needs of the undertaking and for the period strictly necessary to satisfy such needs. Art. 140(2) provides a non-exhaustive list of examples of temporary needs of the undertaking:
      - Direct or indirect replacement of an absent employee
      * for any reason, who is temporary unable to work,
      * with a pending lawsuit challenging the lawfulness of his/her dismissal,
      * who is taking an unpaid leave of absence,
      * who goes from working full-time work to part time.
      - Seasonal activity or activities with irregular production cycles due to the structural nature of the market;
      - exceptional increase in the undertaking¿s activity;
      - Performance of an occasional task or certain precisely defined and short-term service.
      - Execution of work, project or precisely defined and temporary activity, including the implementation, management or supervision of civil engineering, public works, industrial installations and repairs, in contract work regime or direct administration.
      In addition, the LC allows the conclusion of FTCs when no temporary needs are involved, in linted cases. These are:
      - launching a new activity of uncertain duration or starting-up an undertaking or branch of enterprise of fewer than 750 employees ;
      - hiring workers seeking their first job or long-term unemployed worker and in certain situations foreseen in specific laws on employment policy.
      (art. 140(4) LC)


  • Número máximo de CDD consecutivos: 4
    Remarks:
    • FTCs with a specified date of expiry (certain term) may only be renewed three times (art. 148(1) LC)
      Note that this rule did not exist in the 2003 LC.
      There is no such limitation for FTCs with an uncertain term but the law limits their duration up to a maximum of 6 years.
  • Duración máxima acumulativa de CDD consecutivos: 3 año(s)
    Remarks:
    • The maximum cumulative duration of successive FTCs (and for a single FTC) varies according to the type of contracts and the reasons for which they were concluded.
      1) FTCs with a specified date of expiry (certain term)
      - 3 years as a general rule
      - 2 years for contracts concluded with long-term unemployed workers or for launching a new activity or starting up a new company provided the total number of workers does not exceed 700.
      - 18 months for contracts concluded with workers seeking their first job. (art. 148(1) LC).
      (Note that under the 2003 LC, after the 3-year period, FTCs could still be further renewed on an exceptional basis for a period of at least 1 year and not more than 3 years. Therefore the maximum cumulative duration of successive FTCs with an certain term was 6 years)

      2) FTCs with an uncertain term:
      The maximum duration is 6 years. (art. 148(4) LC)

      Law 3/2012 of 10 January 2012: two extraordinary renewals are allowed for FTCs that achieve their maximum duration (pursuant to art 148 LC) until 30 June 2013. The total duration of such renewals cannot exceed 18 months and each of .the extraordinary renewals cannot be shorter than one-sixth of the lower between (i) the maximum duration of the FTC; (ii) its actual duration. In any case, the limit of the FTCs subject to this regime of extraordinary renewals to be in force is December 31, 2014

      NEW in 2013 : Under Law 76/2013, of November 7 2013, two extraordinary renewals are allowed for FTCs that achieve their maximum duration (pursuant to art 148 LC or Law 3/2012) within two years of the entry into force of the Law. The total duration of such renewals cannot exceed 12 months and each of .the extraordinary renewals cannot be shorter than one-sixth of the lower between (i) the maximum duration of the FTC; (ii) its actual duration. In any case, the limit of the FTCs subject to this regime of extraordinary renewals to be in force is December 31, 2016.
  • % de trabajadores bajo CDD: 22 %
    Remarks:
    • Data for 2009 (annual survey) corresponding to the percentage of temporary employees of the total number of employees aged 15-64 years.
      Employees with temporary contracts are defined as those who declare themselves as having a fixed term employment contract or a job which will terminate if certain objective criteria are met, such as completion of an assignment or return of the employee who was temporarily replaced.
      Source: Eurostat

Requisitos de fondo de despido (motivos permitidos y prohibidos) - 2014    

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Obligación de motivar el despido :
Remarks:
  • Communication of the reasons for dismissal is always required.
    - For disciplinary dismissals:
    Disciplinary dismissals are always preceded by a formal disciplinary process. The employer is first required to provide the employee, with copy to the works council, a written statement detailing the reasons for dismissal based on specific facts (statement of guilt - "nota de culpa") and the employee must be given an opportunity to respond to the allegations. (art. 353 LC) Once the disciplinary process is concluded, the employer must notify in writing his/her final decision to dismissal which shall set out the reasons for the dismissal. (art. 357, 4), 5) LC).

    - Dismissal for unsuitability:
    The dismissal decision which is communicated to the worker, with a copy to the works council must indicate the reasons justifying the dismissal (art. 376(1) a) LC).

    - Dismissal based on the extinction of the position (individual redundancy):
    The dismissal decision which is communicated to the worker, with a copy to the works council must indicate the reasons justifying the dismissal (art. 369 (1) a) LC).

    For collective dismissals, the reasons for the dismissal shall be first given to the worker's representatives through the information and consultation procedures (art. with the worker's representatives (art. 360 LC). The final decision is communicated to each employee and must clearly state the reasons for the dismissal (art. 363 LC)


Motivos autorizados (despido justificado) : capacidad del trabajador ; razones económicas ; conducta del trabajador
NOTE: This information has changed since the previous period covered.
Remarks:
  • The right to job security and the prohibition of dismissal without a fair reason is embodied in the Portuguese Constitution. Article 53 of the Constitution provides that:
    "Workers shall be guaranteed job security, and dismissal without fair cause or for political or ideological reasons shall be prohibited."

    The LC allows for termination of employment at the initiative of the employer for subjective reasons attributable to the employee (conduct-based motives constituting a "just cause") or for objective reasons, related to the employee (unsuitability) or not (economic reasons: collective dismissal or elimination of the position).

    1) Disciplinary dismissals (just cause dismissal):

    A just cause is defined as a wrongful conduct of the employee that in light of its seriousness and of its consequences makes it immediately and practically impossible for the employment relationship to continue.
    The LC provides a non-exhaustive list of behaviours or acts that may constitute just cause for a dismissal including wilful disobedience to orders, breach of other employee's rights and guarantees, repeated provocation of conflicts with other employees, causing serious damages to the pecuniary interests of the company, persistent non-compliance with the due diligence obligation in performing the work, making false statements to justify absences, unjustified absence for 5 (consecutive) or ten (non-consecutive) days in a calendar year, failure to comply with the health and safety rules, unusual reduction of productivity...(art. 351 LC)

    2) Dismissal for unsuitability:

    It is possible to dismiss an employee on the ground of unsuitability for the position.

    A) Unsuitability occurs in the following situations:
    - continued reduction in the employee's productivity or quality of work;
    - repeated damages to the equipment allocated to the job;
    - risks for the employee's own health and safety or to that of third parties.

    In addition, the following requirements must be fulfilled:
    a) there has been changes in the workplace resulting from the introduction of new technologies or equipment in the six months preceding the beginning of the dismissal procedure.
    b)the worker must have been given adequate training to adjust to the changes introduced and,
    c) the worker must have been given an adaptation period of at least 30 days whenever the position involves health and safety risks and,
    d)there is no other position available in the enterprise compatible with the "professional category of the worker" (as from 2104: the original wording referred to the "worker's qualification" (see below).

    NEW in 2014 : Under Law 23/2012 requirement under letter d) was eliminated. The judgment of the Constitutional Court no. 602/13 of 23 September 2013, declared elimination of the requirement under letter d) unconstitutional. As a consequence, Law 27/2014 of 8 May 2014 reintroduced the requirement under letter d) (amended as explained above).


    B) In addition, unsuitability occurs in the context of complex, technical or managerial positions when the employee fails to reach the objectives previously agreed and it is practically impossible for the employment relationship to continue. In such case, changes to worker's positions resulting from the introduction of new technologies or equipment or modifications in the manufacturing or marketing process are also required. It is also compulsory that the situation of unsuitability is not caused by the lack of safety and health conditions at work attributable to the employer (art. 374(2) and 375(1) LC).

    3) Economic dismissals:

    The LC also allows dismissals for economic reasons. Depending on the number of employees concerned, a distinction is made between collective dismissals and dismissals based on the elimination of the position. Both types of dismissal are allowed on the grounds of the closure of one or more departments, or the need to reduce the workforce for structural, technological or economic reasons (art. 359(1) LC).

    NEW in 2014 :
    Under the original version of the LC, art 368 (2) provided for a list of criteria to be followed to select the employee to be made redundant when more employees with the same post where present in the section; these were: 1) shorter length of service in the same post; 2) shorter length of service in the occupational category; 3) lower rank class of the occupational category, 4) shorter length of service in the enterprise. Law 23/2012 eliminated this list so that criteria could be set out by the employer provided that they were relevant and non-discriminatory. The judgment of the Constitutional Court no. 602/13 of 23 September 2013, declared elimination of list unconstitutional. As a consequence, Law 27/2014 of 8 May 2014 introduced an amended list of criteria: 1) lower level of performance, pursuant to criteria pre-disclosed to the employee; 2) lower academic and professional qualifications;3) Higher cost of keeping the employment relationship in place; lower work experience in the post; lower length of service.


Motivos prohibidos : estado civil; embarazo ; licencia de maternidad; responsabilidades familiares; sexo; orientación sexual ; opinion política ; origen social ; nacionalidad ; edad ; afiliación sindical y actividades sindicales ; discapacidad ; lengua; licencia paternal; nacimiento; información genética; origen étnico
Remarks:
  • There is a general principle of non-discrimination in the LC. According to this principle, any employer is prohibited from discriminating any employee or applicant, directly or indirectly, on the basis of extraction, age, sex, sexual orientation, marital status, family condition, economic situation, education, social condition or origin, genetic information, reduced capacity for work, disability, chronic illness, nationality, ethnic origin, race, territory of origin, language, religion, political opinion or ideological opinions and trade union affiliation (art. 24 and 25 LC).

    In addition, the LC specifically prohibits dismissals based on political, ideological, ethnic or religious grounds, even when the employer invokes a different reason (art. 381(a) LC).
    Lastly, the dismissal of a pregnant employee, an employee who have recently given birth or is breastfeeding or during parental leave is unlawful if the prior opinion of the competent administrative body is not requested (art. 381 d) LC).


Trabajadores que gozan de una protección particular (fuero): representantes de los trabajadores ; mujeres embarazadas o con licencia de maternidad ; trabajadores con responsabilidades familiares
Remarks:
  • - Pregnant women/ women on maternity leave and workers with family responsibilities:
    There is no prohibition of dismissal during pregnancy or maternity leave. However, according to article 63 LC, any dismissal of a pregnant employee, an employee who recently gave birth or is breastfeeding or any employee (male and female) on parental leave requires the prior favourable opinion of the competent authority (Commission for Equality in Labour and Employment (CITE)).
    Any disciplinary dismissal of those employees is always presumed to have been done without a just cause.
    The CITE shall issue its opinion within 30 days.
    If the opinion is unfavourable, the employer cannot dismiss the employee without having obtained a court decision recognizing the existence of a justified reason. In such cases, the burden of the proof lies on the employer. If a dismissal is declared unlawful by the courts the employer cannot oppose the reinstatement of the employee. As an alternative to reinstatement the employee is entitled to compensation.
    (Note also that under Article 381 of the Labour Code, failure by the employer to ask for a prior formal opinion from this authority is in itself a ground of unlawfulness.)

    - Workers' representatives:
    The LC prohibits the dismissal of workers' representatives on the grounds of their participation in collective representation structure or trade-union affiliation or non-affiliation (art. 406) and provides them with special protection in case of disciplinary action or dismissal (art. 410). In particular, the dismissal of a candidate for a trade union body or the Works Council or employees who are, or have been, members of such bodies within the last three years is always presumed to have been done without a just cause (art. 420-3 LC).
    If the employer cannot prove that the disciplinary of dismissal was justified by a just cause, the workers' representative has the right to choose between reinstatement or compensation higher than the standard one (art. 410-6). The court proceedings for challenging such dismissals are of an urgent nature (art. 410-5).


Requisitos de forma / procedimiento de despido individual - 2014    

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Forma de la notificación del despido al trabajador : escrita

Remarks:
  • 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)

Plazo de preaviso :
Remarks:
  • 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:

    *Probationary period:
    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).
    • duración de servicio ≥ 6 meses
      • 15 día(s) .
    • duración de servicio ≥ 9 meses
      • 15 día(s) .
    • duración de servicio ≥ 2 años
      • 30 día(s) .
    • duración de servicio ≥ 4 años
      • 30 día(s) .
    • duración de servicio ≥ 5 años
      • 60 día(s) .
    • duración de servicio ≥ 10 años
      • 75 día(s) .
    • duración de servicio ≥ 20 años
      • 75 día(s) .

    Indemnización sustitutiva de preaviso : No

    Remarks:
    • 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).

    Notificación a la administración:

    Remarks:
    • 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).

    Notificación a los representantes de los trabajadores :

    Remarks:
    • Intervention of workers' representatives is required in all types of individual dismissals.

      - Unsuitability:
      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)

    Aprobación de la administración publica o de organismos judiciales : No

    Acuerdo de los representantes de los trabajadores: No

    Requisitos formales / procedimientos de despido colectivos por razones económicas - 2014    

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    Definición de despido colectivo (número de empleados afectados):
    A collective dismissal occurs when the employer terminates, either simultaneously or within a period of three months, the contracts of employment of:
    - at least 2 workers in micro and small enterprises (= with fewer than 50 workers) or
    - at least 5 worker in medium and large enterprises (= with at least 50 workers).

    Remarks:
    • Art. 359 LC.
      In addition collective dismissals are only allowed on the grounds of the closure of one or more departments, or the need to reduce the workforce for structural, technological or economic reasons (art. 359(1) LC).

    Consultación previa con los sindicatos (representantes de los trabajadores) :

    Remarks:
    • Arts. 360-361 LC.
      The employer must notify, for information and consultation, in writing the works council or, in its absence the inter-trade union committee or in the union representing the affected workers (or in their absence ad-hoc appointed representatives designated by the workers)
      The written notification shall include:
      - the reasons for the collective dismissal;
      - the organisational chart of the enterprise ;
      - the criteria used in the selection of employees to be dismissed;
      - the number and categories of the affected employees;
      - the time-frame for the dismissals;
      - the method of calculation of overall compensation granted to the employee in addition to redundancy payment.
      A copy of the notification must be sent to the labour authority.
      The information and consultation process starts 5 days after the notification has taken place (compared to 10 days under the 2003 LC) and shall be carried out with a view to reaching an agreement as to the extent and the effects of the measures to be adopted and other measures aimed at reducing the number of workers to be dismissed, notably.
      - suspension of the employment contracts;
      - work reduction;
      - professional retraining and reclassification;
      - pre-retirement and early retirement.
      Having reached an agreement, or in the absence thereof, 15 days after the initial communication (previously 20 days under the 2003 LC), the employer notifies each employee, in writing, of its final dismissal decision, indicating the reasons for the dismissal and the and date of termination. The contract of employment will only terminate after the expiry of the notice period, the duration of which varies between 15 and 75 days according to the employee's length of service and is identical to the notice period for individual dismissals.

    Notificación a la administración:

    Remarks:
    • A copy of the initial notification of the proposed collective dismissal to the workers' representative shall also be sent to the relevant service of the labour ministry. (art. 360(5) LC). A representative from the Labour Ministry will also take part in the negotiation procedure, although with a limited role to ensuring the material and procedural regularity of the process and promoting conciliation.
      (Art. 362 LC).
      In addition, at the time, the final decision is communicated to the employee, the employer is required to send the Ministry of Labour the minutes of the consultation meeting, and information on each employees affected by the collective dismissal (including their name, address, date of birth, hiring date, social security situation, profession, category, salary, the measures decided and their planned implementation date (art. 363(3) LC).

    Notificación a los representantes de los trabajadores :

    Remarks:
    • See remarks under "prior consultation"
      (art. 360-361 LC).

    Aprobación de la administración publica o de organismos judiciales : No

    Acuerdo de los representantes de los trabajadores: No

    Reglas de prioridad para los despidos colectivos (consideraciones sociales, edad, años de servicio): No

    Remarks:
    • There are no statutory selection criteria to be observed in the event of a collective dismissal. Selection criteria are part of the elements to be communicated to the workers' representatives within the information and consultation process (art. 360(2)c) LC).

      However, in the case of dismissals based on the elimination of a job position (individual redundancy, which may concern more than one employee but less that the required threshold for a collective dismissal, when selecting the employee to be made redundant, the employer must take into account the following criteria, in the following order:
      - shorter length of service in the same post,
      - shorter length of service in the occupational category,
      - lower rank class of the occupational category,
      - shorter length of service in the enterprise (art. 368(2) LC).

    Obligación del empleador de considerar solucionés alternativas al despido (transferencia, formación...):

    Remarks:
    • There are no statutory selection criteria to be observed in the event of a collective dismissal. Selection criteria are part of the elements to be communicated to the workers' representatives within the information and consultation process (art. 360(2)c) LC).

      However, for the criteria to be followed in the case of dismissals based on the elimination of a job position (individual redundancy), which may concern more than one employee but less than the required threshold for a collective dismissal, see under economic dismissal above. (art. 368(2) LC).

    Reglas de prioridad para la re-contratación: No

    Indemnización por despido e indemnización especifica por despidos económicos - 2014    

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    Indemnización por despido:
    Remarks:
    • - Severance pay is due in the event of dismissal for unsuitability, elimination of the position and collective dismissal. Disciplinary dismissals do not give rise to severance pay.

      Before Law 23/2012 severance payment amounted to 1 month of basic salary for each full year of seniority. Law 23/2012 had reduced this amount to 20 days of basic salary per each full year of seniority and eliminated the minimum 3-month payment.

      New in 2013 :
      Law 69/2013 of 30 August 2013 reduced this amount to the current 12 days of basic salary for each full year of seniority. Transitory measures have been put in place for contracts of employment already in force In case of fraction of years of seniority, compensation is prorated (art. 366, 372, 379 LC)
    • duración de servicio ≥ 6 meses: 0 mes(es)
    • duración de servicio ≥ 9 meses: 0 mes(es)
    • duración de servicio ≥ 1 año: 0.4 mes(es)
    • duración de servicio ≥ 2 años: 0.8 mes(es)
    • duración de servicio ≥ 4 años: 1.6 mes(es)
    • duración de servicio ≥ 5 años: 2 mes(es)
    • duración de servicio ≥ 10 años: 4 mes(es)
    • duración de servicio ≥ 20 años: 8 mes(es)
    Indemnización por despido por razones económicas:
    Remarks:
    • No specific redundancy payment. Severance pay covers economic dismissals (see remarks under severance pay).
    • duración de servicio ≥ 6 meses: 0 mes(es)
    • duración de servicio ≥ 9 meses: 0 mes(es)
    • duración de servicio ≥ 1 año: 0.4 mes(es)
    • duración de servicio ≥ 2 años: 0.8 mes(es)
    • duración de servicio ≥ 4 años: 1.6 mes(es)
    • duración de servicio ≥ 5 años: 2 mes(es)
    • duración de servicio ≥ 10 años: 4 mes(es)
    • duración de servicio ≥ 20 años: 8 mes(es)

    Vías de recurso y procedimientos contenciosos en casos de litigios individuales - 2014    

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    Compensación por despido injustificado - libre determinación de la Corte: No

    Remarks:
    • Art. 391 and 392 LC.

    Compensación por despido injustificado - límites legales (techo calculado en meses o método de calculo) :
    - 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.

    Posibilidad de readmisión:

    Remarks:
    • 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).

    Conciliación previa obligatoria:

    Remarks:
    • 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).

    Corte o Tribunal competente : tribunal del trabajo

    Remarks:
    • 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)

    Arbitraje: No

    Remarks:
    • 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.).

    Información adicional - 2014    

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