References
Constitution of Brazil, 1988, (in English including amendments until Constitutional Amendment 52 of 2006 (Chapter II))
Date:
21 Aug 1970;
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(view in NATLEX
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Consolidation of Labour Laws [CLL], Decree Law No. 5452 (1093), as last amended by Act No 13.103 of March 2015. <br/>[Decreto-ley núm. 5452, de 1° de mayo de 1943, por el que se aprueba la Codificación de las Leyes del Trabajo texto compilado - in Portuguese only]
Date:
21 Aug 1970;
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Act No. 8036 of 11 May 1990 on the Guarantee Fund for Time of Service, as last amended by Act No. 12058 of 13 October 2009 [Lei 8.036, de 11 de maio de 1990 Dispõe sobre o Fundo de Garantia do Tempo de Serviço, e dá outras providências - in Portuguese only]
Date:
21 Aug 1970;
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Act No. 9029 of 13 April 1995 (on prohibition of discriminatory practices in employment) last amended by Act 12288 of 2010 -<br/>[in Portuguese only]
Date:
21 Aug 1970;
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Act on Prior Notice
Date:
21 Aug 1970;
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Scope
Size of enterprises excluded (≤): none
Workers' categories excluded: civil/public servants, agricultural workers, domestic workers
Art. 7 CLL: Those persons are excluded from the scope of application of the CLL except where expressly provided to the contrary in the legislation. These categories are governed by specific Acts (Domestic workers: Act No. 5859 of 11 December 1972; Civil Servants: Act No. 8112 of 11 December 1990; Agricultural workers: Act no. 5889 of 8 June 1973).
FTC regulated: Yes
Valid reasons for FTC use: objective and material reasons
Art. 443 CLC: A contract for a specified period is a contract in which duration is fixed in advance or which depends upon the performance of specified services or on the occurrence of a particular event, the approximate date of which can be foreseen. Contracts for a specified period are valid only if they govern services whose nature or transitional character justifies the fixing of their duration in advance, transitional activities carried out by the undertaking, and contracts of a probationary nature.
: 2
Art. 451 CLL: If a FTC is tacitly or expressly renewed more than once, it shall be deemed to be a contract for an unspecified period.
Maximum cumulative duration of successive FTCs: 24month(s)
Art. 445 CLL.
Maximum probationary (trial) period (in months): 3 month(s)
Art. 445 CLL: Contracts concluded on a probationary basis may not exceed 90 days.
However, for the purposes of determining compensation for unjustified dismissal, the first year of a contract of an unspecified duration shall be deemed to be a trial period and any worker who has not completed such period would not be entitled to compensation (art. 478 CLL).
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 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).
Notification to the worker to be dismissed: no specific form required
Notice period:
According to art 487 of the CLL, a party who wishes to cancel an employment contract of an indefinite duration without a just motive ("sem justo motivo") shall give notice to the other party of his or her intention as follows:
* eight days in advance if wages are paid weekly or at shorter intervals;
* thirty days in advance if wages are paid fortnightly or monthly, or if the employee's length of service in the undertaking exceeds 12 months.
Note that the 8 days' notice requirement for weekly-paid workers might not be valid anymore since the adoption of the 1988 Constitution as art. 7 XXI of the Constitution provides for "a right to notice of dismissal in proportion to the length of service of at least thirty days, as provided by law".
According to Law No. 12.506, 11 October 2011, Article 1. Single paragraph. "The prior notice provided for in this article will be added 3 (three) days per year of service provided in the same company, up to a maximum of 60 (sixty) days, making a total of up to 90 (ninety) days."
Pay in lieu of notice: Yes
Art. 487(1) CLL: If the employer fails to give due notice, the employee is entitled to his or her wages for the period of notice, and that period is always deemed to be included in the period of employment.
Notification to the public administration: No
No prior notification as such.
However, see art. 477(1) CLL which regulates compensation following dismissal without cause and provides that a letter of resignation or a signed termination form of an employee having more than 1 year' service shall only be valid if it was done with the assistance of the trade union or the competent authority of the Ministry of Labour.
See also, Baker & Mackenzie, "Worldwide Guide to Termination, Employment Discrimination, and Workplace Harassment Laws" (2009): "As set forth in the Labor Code, termination of an employment relationship requires certain formal procedures if the employee has worked for the employer for more than one year. In such circumstances, the parties must submit a termination form describing all severance payments mentioned above, as applicable, to a representative of the employee's union or the Labor Department."
Notification to workers' representatives: No
Approval by public administration or judicial bodies: No
Approval by workers' representatives: No
Definition of collective dismissal (number of employees concerned) There are no legal provisions on collective dismissal.<br/>Therefore the procedural requirements for individual dismissals without cause must be applied (= prior notice + payment of compensation).
Notification to the public administration No
Notification to trade union (workers' representatives) No
Notification to workers' representatives: No
Approval by trade union (workers' representatives) No
Approval by workers' representatives No
Priority rules for collective dismissals (social considerations, age, job tenure) No
Employer's obligation to consider alternatives to dismissal (transfers, retraining...) No
Priority rules for re-employment No
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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.
managerial / executive positions: Yes
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).
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.