References
Workers' categories excluded:
Obligation to provide reasons to the employee: No
Valid grounds (justified dismissal):
Prohibited grounds: marital status, pregnancy, maternity leave, family responsibilities, temporary work injury or illness, race, colour, sex, social origin, age, trade union membership and activities, disability, participation in a lawful strike, ethnic origin
- Pregnant employees enjoy job stability and cannot be dismissed except for serious reasons from the date the pregnancy is confirmed until five months after confinement (this covers the duration of maternity leave which is 120 days) (art. 10(IIa) Constitution, Transitional Provisions). See also Act 9799 of 1999, which prohibits any form of discrimination against women in employment (including on the grounds of pregnancy).
- Act No. 9029 of 13 April 1995 prohibits discrimination practices on the basis of sex, origin, race, colour, marital status, family status or age, in respect of access to employment or termination of employment.
- Security of employment is guaranteed through reinstatement to employees who, because of an employment accident or occupational disease, were obliged to suspend the employment relationship (Act No. 8213 of 24 July 1991).
-The Constitution prohibits the dismissal of a unionized employee, except on account of a serious misconduct from the moment he or she registers as a candidate for a leadership or representative position in a trade union and for one year thereafter (art. 8(VIII) Constitution).
- Dismissal of workers involved in a strike is prohibited expect in the event of an abuse of the right to strike (Act 7783 of 1989, art. 7).
Workers enjoying special protection: workers' representatives, pregnant women and/or women on maternity leave, workers with a long period of service, workers on temporary leave following an occupational disease or a work injury
- The Constitution prohibits the dismissal of a unionized employee, except on account of a serious misconduct from the moment he or she registers as a candidate for a leadership or representative position in the trade union and for one year thereafter (art. 8(VIII), Constitution). If the Court declares the dismissal unjustified, such category of employee has the right to reinstatement.
- The Constitution also prohibits arbitrary dismissal or dismissal without cause of Workers' representatives on the Internal Accident Prevention Commission from the date of registration as a candidate until one year after the end of his or her term of office (art. 10(IIa), Constitution, Transitional Provisions). The CLL also provides that if the employer fails to prove the existence of disciplinary, technical, economic or financial reasons before the Court, those employees shall be reinstated (art. 165 CLL).
- Pregnant workers also enjoy job stability and can therefore not be dismissed except for serious reasons from the date the pregnancy is confirmed until five months after confinement.
(art. 10(IIa) Constitution, Transitional Provisions).
- Until the adoption of the 1988 Constitution, workers with at least ten years of service enjoyed job security and could only be dismissed on the grounds of a serious offense or force majeure upon authorization from the Labour Court. For those workers who have acquired the right of security of tenure after ten years of service before the adoption of the 1988 Constitution (= those hired before 1978), the job security provisions of the CLL are still applicable. Dismissals are prohibited except on account of a serious offence or force majeure (art. 492 CLL). If none of those grounds are proved, they are entitled to reinstatement or compensation in lieu of reinstatement.
- Security of employment is guaranteed through reinstatement to employees who, because of an employment accident or occupational disease, were obliged to suspend the employment relationship (Act No. 8213 of 24 July 1991).
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mine workers: No
: Yes
Yes
Compensation for unfair dismissal - Legal limits (ceiling in months or calculation method): - If a just cause is not recognized by the Court, the employee is entitled to compensation for dismissal without cause = 40% of the total amount deposited in the FGTS ("Fundo de Garantia por Tempo de Serviu00e7o". This amounts to: <b>40% x 8% x length of service (in months)</b>. This compensation for termination of employment is not payable until one year of employment has been completed.<br/><br/>-Workers under a fixed-term contract who are dismissed without cause are also entitled in addition to the above mentioned amount, to the payment of sum equal to half the remuneration to which he or she would have been entitled on the expiry of the contract.
- See art. 18(1) of the Act No. 8036 of 11 May 1990, consolidated version and art. 478 CLL.
Compensation follows different rules in the following situations.
- For those workers who had acquired the right of security of tenure after ten years of service before the adoption of the 1988 Constitution (= those hired before 1978), the job security provisions of the CLL are still applicable. Dismissals are prohibited except on account of a serious offence or force majeure (art. 492 CLL). If none of those grounds are proved, the employer shall reinstate the employee or be ordered by the labour court to pay compensation in lieu of reinstatement equivalent to 2 month's salary per year of service (art. 495-497 CLL).
- Workers who had less than 10 years of service when the constitution was adopted (= those workers hired between 79 and 88) under a contract of indeterminate duration and who did not opt for the FGTS system prior to October 1988 still remain governed by the severance pay provision of the CLL. They are entitled to 1 months' for each year of actual service or any fraction of a year exceeding six months in the event of cancellation of the contract (termination at will). This means that in the event the court does not acknowledge a just cause for dismissal (disciplinary dismissal), the court will order the employer to pay such severance payment to the dismissed employee (art. 477, 478 and 497 CLL, and art. 14(1), Act No. 8036 of 1990).
managerial / executive positions: Yes
Compensation through the FGTS system is usually the only remedy for unfair dismissal.
However reinstatement is available in the following situation:
* Dismissal of workers who had acquired the right of security of tenure after ten years of service before the adoption of the 1988 Constitution (= those hired before 1978). If a serious offence is not duly established, they shall be reinstated or be awarded compensation if the Court declares that reinstatement is not advisable (art. 495 CLL).
* The same rules apply to those categories of employees enjoying job stability (i.e. pregnant women, member of a trade union board and workers' representatives on the Internal Accident Prevention Commission (CIPA)). If serious reasons for dismissal are not recognized by the Labour Court, they have the right to be reinstated.
police: Yes
Art 764 CLL: All labour disputes, whether individual or collective, which are referred to a labor court shall be submitted to conciliation proceedings before the labour judges.
Art. 643-645 CLL: disputes arising out of labour and employment relations between employers and workers should be settled by the labour courts. The Superior Labour Court, Regional Labour Courts and Labour Courts of first instance or the courts of ordinary jurisdiction have jurisdiction.
- The competence of Labour Courts was amplified by the Constitutional Amend No 45/2004. In localities which do not fall within the jurisdiction of the conciliation and arbitration boards, the judges of ordinary jurisdiction shall be responsible for the administration of justice in labour matters (art. 668 and 669 CLL).
The competence of Labour Courts was amplified by the Constitutional Amend No 45/2004.
Existing arbitration: No
Length of procedure: 6.5year(s)
The Superior Labour Tribunal provides statistics on average duration of labour procedures in Brazil (http://www.tst.jus.br/web/estatistica/jt/prazos).
Burden of Proof: both
Art. 818 of CLL provides that the burden of proof is on:
I - the claimant, as to the constitutive fact of its right;
II - to the defendant, as to the existence of an impediment, modification or extinction of the claimant's right.