An employment relationship can often end for a variety of reasons. One of the most common is the breach of employment contract, which occurs due to a breach, by the company or employee, of any contractual clause.
THE CLT it supports both parties and determines rules for breaking the employment contract, imposing rights, duties and even fines depending on what happened that led to the end of the employment relationship. In today's article we will talk about:
- What is breach of employment contract?
- When can the breach of contract occur?
- What are the consequences of breaking the employment contract?
- What are the changes in the face of labor reform?
Do you want to know more about it? Go ahead on this content and have a good reading.
What is breach of employment contract?
To find out how the breach of employment contract works, we first need to resort to CLT to explain what a contract would be. We have this description in article 442.
Art. 442. Individual employment contract is the agreement, tacit or express, corresponding to the employment relationship.
Tacitus refers to agreements based on trust and expressed when there is an agreement via an employment contract with obligations and duties between the company and the employee.
When there is a breach of any of these clauses signed in the labor agreement, it can be said that there was a breach of the employment contract, which is liable to be fines and even termination.
When can the breach of contract occur?
The breach of the employment contract can occur both on the part of the company and on the part of the employee. We can classify the termination of a work contract, in the sense of the breach, between:
- Just cause: When the employee commits a serious failure and violates any agreement made with the company, the breach of the employment contract in this case is justified.
- Indirect termination: It normally occurs when the company fails to comply with what has been agreed and gives the worker the right to resort to breach of contract.
However, do you know in which situations the employee and the employer break the employment contract? We'll talk about it next.
Breach of contract by the employee
The breach of contract by the employee is the consequence of a breach, by the employee, of any clause of the contract signed with the company.
Remembering, of course, that according to the article 480, “The employee will not be able to leave the contract, without just cause, under penalty of being obliged to indemnify the employer of the losses that result from it”.
Some of the main reasons that lead to the breach of contract by the employee are:
- Indiscipline or acts of insubordination in the workplace;
- Failure to comply with the workday;
- When there is a criminal conviction;
- Offenses to co-workers;
These are some of the main reasons why the company has the right to exercise a breach of employment contract with its employees, as provided for in article 482 of the CLT.
Breach of contract by the employer
The breach of the employment contract can also occur on the part of the employer, which occurs when the company is the one who does not respect what was previously agreed with the employee. We can cite as the basis of this situation the article 479 of the CLT.
In this case, the call indirect termination, which is part of an inappropriate act by the company. It is possible to highlight in this case, leading to breach of contract:
- Excessive and unreasonable charges;
- Constant wage delays;
- Requirement for the professional to perform functions that are outside of their function;
- Disrespect for the good reputation of the employee and his family;
- Physical aggressions;
That is, any type of act that deviates from what was enacted in the employment contract can lead to an indirect termination and consequently the breach of the employment contract.
Breach of experience contract
The breach of employment contract in the pandemic, in many cases, was linked to experience contracts. The trial contract period, just to understand the context, lasts for 60 days with the possibility of an extension for another 30 days.
We already talked about the experience contract on our blog, learn more about the topic clicking here.
The question is: is there a breach of experience contract? The answer is yes. If there is any situation in which a contractual clause has been disregarded during this period, the contract is subject to breach.
This breach may occur for the same reasons as mentioned above and for a violation of the employee or employer.
It is important to emphasize that the breach of the experience contract, when carried out by the employer, gives the employee the right to receive the Thirteenth, vacation and salary balance proportional to the time worked.
However, the employer may also, by law, include an indemnity clause in the contract, this means that the employee will have to pay a fine for breach of experience contract.
In order for this fine to be breached, the company needs to prove in court what happened and the amount must be less than half the amount the employee would still be entitled to receive until the end of the contract.
What are the consequences of breaking the employment contract?
It is important that both the company and the employee know what the rights and responsibilities are when there is a breach of contract. Considering, of course, the two types of termination linked to this breach, for just cause or indirect termination.
If the breach of contract occurred for just cause, that is, it left the employer due to a serious employee fault, there are some rights that the employee has and others that he loses, check below which they are:
- They are entitled to overdue vacation plus ⅓ and the salary balance for working days;
- Loses the right to unemployment insurance and the movement of FGTS.
Now when the breach of contract occurs due to a breach of the company's duties, the professional acquires the same rights as the dismissal without cause. Are they:
- salary balance for days worked;
- Expired or proportional vacations, with an additional ⅓;
- Proportional 13th;
- 40% fine on FGTS;
- Early warning;
- Unemployment insurance;
In addition to the legal obligations, the company may suffer from indemnity for pain and suffering, if the employee enters this request in the process. Subsequently, there will be an assessment of whether the request is valid by the Ministry of Labor.
What are the changes in the face of labor reform?
The breach of employment contract underwent changes with the impacts of the labor reform, mainly in terms of deadlines for payment of severance payments.
We can also highlight that during the pandemic, the possibility of the so-called suspension of employment contract arose, valid until last month, based on the Law 10.420 / 2020.
With it, companies were able to legally suspend contracts individually and also obtained the right to reduce wages and workday.
Now when we talk specifically about breach of employment contract we can highlight the following items in the labor reform:
- Eliminated the need for union approval in case of labor termination;
- Severance payments must be paid within 10 days after the end of the employment contract, regardless of the situation;
- Severance payments can now be paid by bank deposit;
- Inclusion of termination by mutual agreement, which occurs when both parties want to terminate the employment contract;
Attention to the contract!
As we could see throughout this article, the breach of the employment contract is full of rules and compliance, both on the part of the employer and the employee.
Several reasons can lead to this breach, but all of them go against some kind of non-compliance with what was previously agreed.
Therefore, it is important, before delving into the breach of employment contract, to know the contract itself, which is the basis, through its clauses, the rule-setter and the employment relationship itself.
It is from this that the company and the employee will be able to visualize their rights and duties under the law.
And not only that, it is from this contract that both parties will know what they must comply with and what the consequences of noncompliance with any of the imposed clauses.
Did you understand the importance of knowing how the breach of employment contract works? Did you have any questions? So, leave a comment on this article so we can help you.