BRAZIL Law and Practice Contributed by: Caio Medici Madureira, Rodrigo Souza Macedo and Nestor dos Santos Saragiotto, Tortoro, Madureira & Ragazzi Advogados
except in cases of self-defence or defence of oth - ers; • acts harmful to the honour or good reputation of or physical offences committed against the employer and superiors, except in cases of self-defence or defence of others; • constant gambling; and • loss of the qualification or requirements established by law for the exercise of the profession, as a result of the employee’s wilful misconduct. 7.4 Termination Agreements Termination by mutual agreement, or by agree - ment between the parties, is a form of termination of the employment contract where the employee and employer agree to terminate the employment relation - ship, based on Article 484-A of the CLT, included by the Labour Reform. In this modality, the employee receives half of the indemnified notice period and is entitled to withdraw 80% of the FGTS, but is not enti - tled to unemployment insurance. Agreement Between the Parties The employee and employer agree to terminate the employment contract. Severance pay The employee receives: • salary balance; • proportional holiday pay plus one third; • proportional 13th-month salary; • half of the severance pay (if applicable); • half of the FGTS penalty (20% instead of 40%); • right to FGTS – the employee can withdraw up to 80% of the FGTS balance; and • no right to unemployment insurance – the employ - ee is not entitled to receive unemployment insur - ance in this modality. 7.5 Protected Categories of Employee No category of workers is protected from dismiss - al. However, there are specific cases of provisional stability. Provisional stability prevents the employer from terminating the employment contract without just cause during the period defined by law for each specific situation. This means that, in these cases, the employee can only be dismissed for serious reasons
such as serious misconduct or force majeure. This may be provided for by law or in a collective labour agreement. The most notable cases in the legislation are as fol - lows. • Pregnant women – Pregnant women have stabil - ity from the confirmation of pregnancy until five months after giving birth. • Accident victims – Workers who suffer an accident at work have job security for 12 months after being discharged from hospital and returning to work. • CIPA members – Members of the Internal Accident Prevention Commission (CIPA) have job security from the moment they register their candidacy until one year after the end of their term of office. • Union leaders – Union and co-operative leaders also have job security from the time of their candi - dacy until one year after the end of their term. • Employee representatives – Employees elected as representatives in companies with more than 200 employees may also have job security. 8. Disputes 8.1 Wrongful Dismissal Dismissals can be carried out without just cause and for just cause. Dismissal without just cause is a right of the employer and does not depend on any justification. As a rule, therefore, there is nothing to contest. Dismissal for just cause is one that, as a rule, is chal - lenged in court. The grounds for questioning are: • the alleged conduct is not described in the law as authorising just cause; • even if the conduct is authorised by law, it was not serious enough to justify dismissal (ie, the employer should have warned or suspended the employee); and • the duty of immediacy was not complied with, or there was double punishment.
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