Each employment bond between employer and employee will have its path dictated by factors such as: organizational climate, team affairs, routine activities, among others. However, when the bond is not adequate to the expectations of the employee or the company and involves a serious misconduct, triggering the termination of the employment contract from one of the parties, that can cause greater complications for those involved.
A serious misconduct that justifies the termination of the employment contract can be applied to both the employee and the employer. This type of termination of employment bond is called dismissal with cause (when the employee commits a serious misconduct) or indirect termination of the employment bond (when the defaulting agent is the company).
For a company to be able to carry out the dismissal with cause, it is necessary both, some of the hypotheses of art. 482 of the CLT (as an act of impropriety, incontinence of conduct, habitual negotiation, among others) and, cumulatively, the requirement of immediacy: the application of dismissal with cause must be simultaneous to the fault committed. Otherwise, the company's tacit forgiveness for the employee's misconduct is characterized.
When the employee claims the indirect termination of the employment bond, the requirement of immediacy is mitigated, as the Labor Justice tends to lean towards the principle of continuity of the employment bond and the protection of the low-income party, in order to not demand this element in a lawsuit proposed by employees. When filing a lawsuit to seek indirect termination of the employment bond the plaintiff must prove the occurrence of the wrongful act, bearing in mind that it is not any act that can be considered a serious misconduct by the employer.
The law ensures that the employee does not have to wait for a Court decision to consider his or her employment bond terminated when, for example, the employer fails to comply with the obligations described in the employment bond. The employee may stop working and only after file the lawsuit.
Even if the employee takes a long time to file a lawsuit, if they do so within the usual statutory period (up to 2 years after the end of the employment bond), the hypothesis of tacit forgiveness in respect of the principle of continuity of employment bond would not be configured, validating the filing of the lawsuit.
After the judicial decision, whenever any party remains unresolved, there is the possibility of bringing an appeal for the case to be analyzed by another instance of Justice. In Brazil, the principle of double degree of jurisdiction prevails, since this is the right of the parties to have their appeals judged by a different Court than the one that issued the original decision, it is usually a higher Court than the one that judged the case in the first degree, it is the so-called “ad quem” Court.
The most effective measure that companies can take to avoid being surprised by lawsuits seeking indirect termination of employment bonds is the implementation of an effective compliance program.
The Compliance area is responsible for ensuring that the company is in compliance with the Laws and ensuring that the clauses of statutes and employment bonds are being observed in the company's routine activities. In addition, it will be responsible for analyzing complaints of offenses and harassment in the workplace, which will allow the company to act on time, eliminating its risk factors.
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Authors
Jorge Müller Camatta
Associate
Post-graduate degree in Law and Labor Relations, São Bernardo do Campo Faculty of Law.
Gabriel Burjaili de Oliveira
Partner
Post-graduate degree in Civil Procedure, Civil Law and Contracts from Escola Paulista de Direito (EPD), master's degree (in progress) in Civil Law (Environmental Civil Liability) from USP, and specialization in Environmental Law, Corporate Law, and Governance and Succession of Family businesses.
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