Compensation for unfair dismissal - free determination by court:
Compensation for unfair dismissal - Are there legal limits?:
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 Serviço". This amounts to: 40% x 8% x length of service (in months). This compensation for termination of employment is not payable until one year of employment has been completed.
-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.
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.
Preliminary mandatory conciliation:
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.
Competent court(s) / tribunal(s):
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).
Article 507-A of the CLL (included by the Labor Reform (Law No. 13,467 / 2017) provides that, for employees whose remuneration is more than twice the ceiling of the General Social Security System (RGPS), an arbitration clause may be agreed upon, provided that on their own initiative or expressly agreed, under the terms of Law No. 9.307/1996 (Arbitration Law).
As a result, the arbitration that, according to article 114, Paragraph 1, of the Federal Constitution (CFRB), was admitted by the labour courts only in the context of collective bargaining agreements, has now also been accepted in individual employee demands.
Length of procedure:
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:
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.