CDD reglementés: Oui

Motifs autorisés de recours au CDD: raisons matérielles et objectives

Remarks

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.

Nombre maximum de CDD successifs: 2

Remarks

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.

Durée cumulée maximum de CDD successifs: 24mois

Remarks

Art. 445 CLL.

Durée maximale de la période d'essai (en mois): 3 mois

Remarks

Art. 445 CLL, single §: 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, § 1° CLL).

Obligation d'informer le travailleur des raisons du licenciement Non Motifs autorisés (licenciement justifié): aucun

Remarks

Under the CLL, either party can terminate a contract of indefinite duration at will by observing notice requirements. (art. 487 CLL). In addition, an employer who dismisses an employee without cause has to pay a specific compensation (see remarks under severance pay).
The 1988 Constitution provides for the right of rural and urban workers to be "protected against arbitrary dismissal or against dismissal without just cause, according to a supplementary law which shall establish termination pay, among other rights".
The protection against dismissal without just cause is implemented through the FGTS system (Constitution, Transitional Provisions, Federal Constitution, Art. 10, Line I; Act No. 8036 of 1990). Employee's protection therefore lies in the right to receive termination payment ("verbas rescisórias").Protection against arbitrary dismissal has not been implemented yet.

Certain categories of employees enjoy job stability and therefore can only be dismissed for serious reasons (see "workers enjoying special protection").
In cases where the employee has committed one of the grave misconducts enumerated under the CLL, the employment relationship may be terminated by way of "dismissal for just cause" (art. 482 CLL)
The acts entailing dismissal for just cause include: deceit; misconduct; breach of discipline or insubordination; criminal conviction (except if the sentence is suspended), habitual drunkenness or drunkenness while on duty; disclosure of trade secrets; neglect of duty; performance of acts that damage the reputation of the employer or third parties; if it is established by an administrative inquiry that the employee is guilty of acts which are detrimental to national security.
In such cases, notice and compensation requirements shall not be observed.

Motifs prohibés: état matrimonial, grossesse, congé de matérnité, responsabilités familiales, maladie ou accident professionel temporaire, race, couleur, sexe, origine sociale, âge, affiliation et activités syndicales, handicap, participation à une grève légale, origine ethnique

Remarks

- 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, color, marital status, family situation, disability, professional rehabilitation, age, among others, except in this case, the hypotheses of protection to children and adolescents provided for in item XXXIII of Art. 7th of the Federal Constitution.

- 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).

Travailleurs bénéficiant d'une protection particulière: représentants des travailleurs, femmes enceintes ou en congé de maternité, travailleurs en congé temporaire suite à une maladie professionnelle ou un accident du travail

Remarks

- 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).
- 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).

Forme de la notification du licenciement au travailleur: aucune forme particulière requise

Délai de préavis:

Remarks

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.

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."

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".

ancienneté ≥ 6 mois:

  • Tous: 1 mois.

ancienneté ≥ 9 mois:

  • Tous: 1 mois.

ancienneté ≥ 2 ans:

  • Tous: 1.1 mois.

ancienneté ≥ 4 ans:

  • Tous: 1.3 mois.

ancienneté ≥ 5 ans:

  • Tous: 1.4 mois.

ancienneté ≥ 10 ans:

  • Tous: 1.9 mois.

ancienneté ≥ 20 ans:

  • Tous: 2.9 mois.

Indemnité compensatrice de préavis: Oui

Remarks

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 à l'administration publique: Non

Remarks

No prior notification as such.
(Art. 477 (1) was derogated by Law 13467, 2017)

Notification aux représentants des travailleurs: Non

Autorisation de l'administration publique ou d'un organe judiciaire: Non

Accord des représentants des travailleurs: Non

Définition du licenciement collectif (nombre d'employés concernés): There are no legal provisions on collective dismissal.
Therefore the procedural requirements for individual dismissals without cause must be applied (= prior notice + payment of compensation).

Consultation préalable des syndicats (représentants des travailleurs): Non

Notification à l'administration publique: Non

Notification aux représentants des travailleurs: Non

Autorisation de l'administration publique ou d'un organe judiciaire: Non

Accord des représentants des travailleurs: Non

Règles de priorité pour l'ordre des des licenciements collectifs (situation sociale, âge, ancienneté): Non

Obligation de l'employeur d'examiner des solutions alternatives au licenciement (transferts, formation...): Non

Règles de priorité de réembauche: Non

Remarks

Note. Law 13.467 of 2017 included Art. 477-A in the CLL, which provides that: "As dispensas imotivadas individuais, plúrimas ou coletivas equiparam-se para todos os fins, não havendo necessidade de autorização prévia de entidade sindical ou de celebração de convenção coletiva ou acordo coletivo de trabalho para sua efetivação."

ancienneté ≥ 6 mois: 0 mois

ancienneté ≥ 9 mois: 0 mois

ancienneté ≥ 1 an: 0 mois

ancienneté ≥ 4 ans: 0 mois

ancienneté ≥ 5 ans: 0 mois

ancienneté ≥ 10 ans: 0 mois

ancienneté ≥ 20 ans: 0 mois

Indemnité de licenciement pour motif économique:

ancienneté ≥ 6 mois: 0 mois

ancienneté ≥ 9 mois: 0 mois

ancienneté ≥ 1 an: 0 mois

ancienneté ≥ 2 ans: 0 mois

ancienneté ≥ 4 ans: 0 mois

ancienneté ≥ 5 ans: 0 mois

ancienneté ≥ 10 ans: 0 mois

ancienneté ≥ 20 ans: 0 mois

Notes / Remarques

Notes

There is no severance pay as such. However, according to the Guarantee Fund for Time of Service system established in 1966 and now regulated by Act No. 8036 of 11 May 1990, ("Fundo de Garantia por Tempo de Serviço" - FGTS), every month, the employer is required to deposit 8 % of the employee's monthly salary into an account managed by the Federal Savings Bank ("Caixa Econômica Federal") on behalf of the employee. [Note that for the period of employment from 01/2002 to 12/2006 additional 0.5% had to be paid by the employer to the state as part of social benefits]. Deposits are adjusted for inflation.
The employee is entitled to withdraw the balance of the account in several situations, including the following:
- dismissal without cause (= for any reason other than those listed as "just causes" in CLL)
- expiry of a fixed-term contract;
- closure of the undertaking;
- termination due to force majeure;
- termination by mutual agreement;
- death of the employer;
- retirement;
- when the worker or his/her dependent suffers from cancer or is HIV positive.
- in order to purchase a house, settle or amortize the debt or payment of part of housing loan instalments, etc.

- If an employee is dismissed without cause (which includes economic reasons), in addition to the total amount deposited in his/her FGTS account, he or she will be entitled to an additional indemnity of 40% of the updated value of deposits in the FGTS account. Extra 10% shall be paid by the employer directly to the government (not the worker) (= see compensation for unfair dismissal).
Workers under a fixed-term contract who are dismissed without cause are also entitled in addition to the aforementioned 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.
These sums are payable upon dismissal together with any other employee's entitlements, and there is no need for a Court decision acknowledging the absence of just cause.
- If the employee is dismissed for a just cause, once the serious misconduct has been acknowledged by the Court, the employee forfeits the right to the aforementioned compensation and to immediate withdrawal of his or her FGTS deposit.

Compensation pour licenciement injustifié - montant librement déterminé par la cour: Non

Compensation for unfair dismissal - Are there legal limits?: Oui

Compensation pour licenciement injustifié - limites légales (plafond en mois ou methode de calcul définie): - 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.

Remarks


Possibilité de réintégration dans l'emploi: Oui

Remarks

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.

Conciliation préalable obligatoire: Oui

Remarks

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.

Courts ou tribunaux compétents: tribunal du travail

Remarks

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).

Règlement des litiges individuels par arbitrage: Oui

Remarks

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.

Durée de la procédure: 6.5annu00e9e(s)

Remarks

The Superior Labour Tribunal provides statistics on average duration of labour procedures in Brazil (http://www.tst.jus.br/web/estatistica/jt/prazos).

Charge de la preuve: les deux

Remarks

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.