CONCEPT
Dismissal for Just Cause occurs when there is a serious misconduct committed by the employee, violating the trust of the employment relationship.
As a consequence of this serious violation, the terminated employee will be entitled only to the remaining salary, family allowance, accrued vacation plus 1/3, and the FGTS deposit for the month of termination. The employee will not be entitled to advance notice, proportional vacation, the 40% FGTS fine, or unemployment insurance.
The employer will have 10 days from the date of dismissal to pay the amounts due.
REQUIREMENTS
As requirements for this farewell to be valid:
Actuality and Immediacy – it must be current and immediate, meaning the contract must be terminated immediately after the employee's serious misconduct. If it occurs months or years after the employee's serious misconduct, it can be assumed that the company has forgiven the employee, and dismissal for cause is no longer applicable;
Double Punishment – The employee cannot be punished twice, that is, if he has received a suspension for the conduct, he cannot receive a new punishment for the same conduct;
Proportionality – Finally, the penalty must be proportional to the employee’s conduct, and his dismissal for just cause may be annulled if it is proven that his misconduct was not that serious.
Gravity and Causation – The employee’s serious conduct must be proven, and there must be a causal link between his/her attitude and the damage, taking into account the peculiarities of each case;
HYPOTHESES
To ensure that no rights are violated, the Consolidation of Labor Laws (CLT), our labor legislation, establishes in its article 482 the hypotheses that constitute just cause:
a) act of improbity – fraud, theft, embezzlement, misappropriation of funds, false medical certificates;
b) incontinence of conduct or bad behavior – sexual harassment, racism, or any other inappropriate sexual conduct;
c) habitual trading on one's own behalf or on behalf of others without the employer's permission, and when it constitutes an act of competition against the company for which the employee works, or is detrimental to the service;
d) criminal conviction of the employee, which has become final and binding, if the execution of the sentence has not been suspended;
e) negligence in the performance of their duties – negligence, delays and absences from work, failure to perform work activities;
f) habitual drunkenness or drunkenness on duty – the law here does not refer to cases of alcoholism, for which dismissal would be discriminatory;
g) violation of company secrecy – provide confidential company information to a competitor;
h) act of indiscipline or insubordination – failure to comply with company rules;
i) abandonment of employment – unjustified absence by the employee for more than 30 days;
j) an act that is harmful to the honor or good reputation committed in the service against any person, or physical offenses, under the same conditions, except in cases of self-defense, whether self-defense or that of others – defamation, slander, physical aggression and insult;
k) acts that are harmful to the honor or good reputation or physical offenses committed against the employer and superiors, except in cases of self-defense, whether self-defense or that of others;
l) constant practice of gambling;
m) loss of qualification or of the requirements established by law for the exercise of the profession, due to willful misconduct by the employee – is the example of a hired driver who loses the right to drive due to excessive traffic fines.
INDIRECT TERMINATION
Indirect termination occurs when an employee requests termination of the employment contract due to violations by the employer. Maintaining the employment relationship becomes impossible due to the employer's fault.
The CLT, in its art. 483, establishes that the employee may consider his/her employment contract terminated, as well as may claim due compensation when:
the) services are required that are beyond their strength, prohibited by law, contrary to good customs, or outside the contract;
b) is treated by the employer or his/her superiors with excessive severity;
w) be in clear danger of considerable harm;
d) the employer does not fulfill the obligations of the contract;
and) the employer or his agents commit an act that is detrimental to his honor and good reputation against him or his family;
f) the employer or his/her agents physically offend him/her, except in cases of self-defense, whether for their own or for someone else's sake;
g) the employer reduces their work, whether by piece or task, in such a way as to significantly affect the amount of wages.
§ 1 – The employee may suspend the provision of services or terminate the contract when he or she has to perform legal obligations that are incompatible with the continuation of the service.
§ 2 – In the event of the death of the employer established as an individual company, the employee is entitled to terminate the employment contract.
CONCLUSION
Dismissal for Just Cause occurs in very specific situations, and it is up to employees and employers to be careful not to fall into any of these situations and the requirements for their application.
Considering the peculiarities of each case, it is also important that the right to a hearing is guaranteed in the dismissal process for just cause, so that the employee who committed a serious offense can defend himself, to give more validity to this procedure and avoid any unforeseen events in the future.
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