BRAZIL Law and Practice Contributed by: Caio Medici Madureira, Rodrigo Souza Macedo and Nestor dos Santos Saragiotto, Tortoro, Madureira & Ragazzi Advogados
• freedom of professional or trade union association for workers, including the right not to suffer, with - out their express and prior consent, any charges or salary deductions established in collective bargain - ing agreements or collective labour agreements; • the right to strike, with workers deciding on the opportunity to exercise it and on the interests they should defend through it; • legal definition of essential services or activities and legal provisions on meeting the urgent needs of the community in the event of a strike; and • taxes and other third-party credits. Rules on working hours and breaks are not considered occupational health, hygiene and safety standards. No reason is required for termination. Dismissal is an employer’s right. Only dismissal for just cause requires a reason, as explained in 7.3 Dismissal for (Serious) Cause . Collective dismissals after 2017 may be carried out by express provision of law (Law No 13,467 of 2017). Before 2017, the jurisprudence of the Superior Labour Court required prior collective bargaining with the union representing the category, given the negative economic impacts of dismissal. 7.2 Notice Periods Advance notice is mandatory for indefinite contracts, except in cases of dismissal for just cause. In the event of resignation by the employee, advance notice is 30 days, which may be worked or compensated. In the event of dismissal by the employer, the notice period is a minimum of 30 days, plus three days for each year worked at the company if applicable, up to a maximum of 90 days. 7. Termination 7.1 Grounds for Termination During the notice period worked, the employee may have their working hours reduced by two hours per day or choose to take the last seven days of the period off, without loss of pay. The notice period, whether worked or compensated, counts as length of service
for all legal purposes (holidays, 13th-month salary, etc). 7.3 Dismissal for (Serious) Cause Dismissal for just cause is the termination of an employment contract by the employer due to serious misconduct by the employee, as provided for in the Consolidated Labour Laws (CLT). In dismissal for just cause, the employee will only be entitled to receive the balance of their salary and accrued holiday pay plus one third, and will not be entitled to prior notice, the 40% penalty on the FGTS, withdrawal of the FGTS, proportional holiday pay plus one third, and will not be able to apply for unemploy - ment insurance. There are no procedures to be followed. However, it is necessary to respect immediacy (the punishment must be adopted immediately after the discovery of the irregular act); proportionality (the misconduct must be serious enough to justify the most severe punish - ment provided for by law); and there can be no double punishment (ie, a misconduct that has already been punished with a warning or suspension cannot justify dismissal for just cause). The CLT provides for the following conduct as grounds for dismissal for just cause: • act of impropriety; • misconduct or malpractice; • habitual negotiation on one’s own behalf or on behalf of others without the employer’s permission, and when it constitutes an act of competition with the company for which the employee works, or is detrimental to the service; • criminal conviction of the employee, res judicata, if there has been no suspension of the sentence; • negligence in the performance of their duties; • habitual drunkenness or drunkenness on duty;
• breach of company confidentiality; • act of indiscipline or insubordination; • abandonment of employment;
• act harmful to the honour or good reputation of any person committed in the course of service, or physical offences under the same conditions,
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