Besides the important – and necessary – changes and additions to the Labour Code, the Decent Work Agenda Bill (known as “Agenda do Trabalho Digno”) also introduces innovations regarding the Labour Procedure Code (CPT).
It thus continues in the line of evolution initiated early on, with the first CPT of 1940, namely with regard to the dismissal process. The legislator’s aim is not only to provide greater security, by means of jurisdictional control of the worker, but also – and it has been trying – to ensure a more in-depth consideration of termination decisions by the employer.
According to the Proposal in question, the Government is essentially recommending changes in the area of the precautionary procedure for suspension of dismissal, that means of temporary opposition until the effectiveness of the decision to dismiss.
Based on this injunction, the worker involved in a dismissal process, in any of its modalities, has legitimacy to appeal to court in order to maintain the labour relationship, in the interim between the dismissal decision and the final declaration of its (i)llegality. With the declaration of suspension by the Court, consequently, the duties of the parties are maintained, in particular the payment of the retribution by the employer.
In effect, the Proposal establishes the legitimacy of the Public Prosecutor’s Office to initiate this procedure, in cases where a labour inspector verifies the existence of signs of unlawful dismissal and the employer, at the date of the notification for correction of the situation by the inspector, has not regularized the situation.
On the other hand, the duplicate of the initial petition, presented by the Public Prosecutor, is sent to the worker simultaneously with the notification of the date of the final hearing. At the same time, the worker is expressly warned that he/she may, within 5 days, adhere to the facts presented by the Public Prosecutor’s Office, or present his/her own pleadings and appoint an attorney.
In addition to the aforementioned modifications in the scope of the injunction to suspend dismissal, it is also clarified that in the context of the action for recognition of the existence of an employment contract, the witnesses presented by the parties are notified to appear at the final hearing or to be questioned by means of technological equipment that allows communication by visual and audible means, in real time, except when there is an alteration or addition to the list of witnesses or if the party undertakes to present them.
It should be noted, however, that there is still no provision for the possibility of employees subject to disciplinary dismissal, whether verbal or not, to resort to a special action to challenge the dismissal. This loophole continues to encourage informal dismissals, for which the employee will only have legitimacy of action through the filing of common labour proceedings, which are more demanding for the employee and potentially more time consuming.
It will therefore remain to raise this issue in the context of the parliamentary discussion of the Draft Law.
Leonor Frazão Grego, João Villaça @ DCM | Littler