The situation experienced again with the floods and inundations felt throughout the country, once again caught many people by surprise who found themselves in a very difficult situation.
This situation prevented many workers, who were affected by the floods or the suppression of the means of transport, from travelling to their place of work to carry out their activities.
Although the list of absences considered justified in the Labour Code makes no reference to adverse weather conditions or similar situations that make it impossible to perform work, we consider that these directly affected workers might have their absence from work justified, in this specific case, without loss of pay.
Article 249, no. 2, paragraph d) of the (Portuguese) Labour Code contains as a justifiable reason for the absence of the worker that which is motivated by the impossibility of providing work due to a fact that is not imputable to the worker. There must be a manifest impossibility of providing work and not a mere difficulty that justifies the absence of the worker.
We believe that the calamity caused by floods, floods, suppression of public transport, road cuts, among other adverse situations, should not be attributable to the worker who finds himself unable to go to his workplace or to perform his work activity in safe conditions.
We cannot forget, however, that the (Portuguese) Labour Code provides for three requirements for the communication of absence: (i) prior communication/as soon as possible; (ii) indication of the justifiable reason and (iii) delivery of the justification to the Employer.
The worker must justify to the Employer the impossibility of travelling to the place of work to perform his activity. Although it is common knowledge, the worker may also be required, if the Employer so requires, to submit a statement from an administrative or equivalent body attesting to the phenomenon and the situation of impossibility verified.
Gonçalo Asper Caro | DCM Littler