Indirect termination is regulated by article 483 of the CLT and occurs when the employer commits a serious fault in relation to the employee. In other words: situations that can cause physical or moral damages and that make the continuity of the employment relationship unfeasible.
It is quite common that, in companies, human resources professionals or personnel departments have doubts about indirect termination, a topic that is still not widespread, despite being included in UK residents labor legislation for a long time.
Thinking to clarify any doubts you may have about this subject, we have prepared this post, which can serve as a kind of guide with relevant information on the subject.
Follow us and understand what indirect termination is, what its effects are for employees and employers, how this type of termination is calculated, the main reasons that can cause it and how an employee can request this type of termination. Follow, below!
What is indirect termination?
Indirect termination is regulated by Article 483 of the Consolidation of Labor Laws (CLT) and occurs only when the employer commits a serious fault in relation to the employee, causing him physical or moral damage that may render the continuity of the employment relationship impracticable.
The functioning of this type of termination is similar to what occurs with dismissal for just cause, but with an inversion of roles, since in this case the person who requests the termination is the professional and not the company.
This type of termination is also known as indirect dismissal, forced dismissal or just cause by the employer. In order for it to be recognized in court, however, there must be proof, in court, of the accusations made by the employee.
In this case, the lawyer hired by the worker who requests this type of dismissal must gather documentary evidence or listen to the testimony of witnesses who prove the accusation being made.
What are the types of damages that motivate indirect termination?
Damage is the consequence of all types of harassment that an employee may suffer – directly or indirectly – in the work environment.
In this sense, we have, then, some distinct concepts of harassment, such as:
Any type of exposure that creates humiliating and embarrassing circumstances for the person. Especially, when it starts to recur.
Therefore, it is not a physical damage, but a psychological one. Something that compromises the employee's routine, his performance and all his psychological structure to relate – both inside and outside the corporate environment.
Examples of bullying:
- abusive attitudes and behaviors of colleagues or managers;
- gestures and words capable of harming the individual's physical and mental integrity;
- abusive charges;
- nicknames and the construction of pejorative situations.
It is worth mentioning that the employee can choose to indirectly terminate when the above examples (and so many others that are configured) occur repeatedly and with direction.
The embarrassment caused here can be confused initially with moral harassment. It turns out that the implications lead to some kind of sexual connotation.
It is not by chance that anyone who sexually harasses someone in the workplace tends to say that it was a joke. As with those who practice bullying.
Provided for in article 216 – A of the Penal Code, this type of crime occurs when the aggressor seeks to “To embarrass someone in order to obtain sexual advantage or favor, with the agent prevailing in his / her condition of superior hierarchy or ancestry inherent in the exercise of a job, position or function”.
This can happen in writing, through gestures and also verbally, with implications that, in addition to causing indirect termination, has legal consequences for the aggressor.
Below, some cases that illustrate the situations of sexual harassment:
- inappropriate invitations;
- unreasonable and impertinent comments about someone's physical attributes;
- unwanted touches;
- embarrassing questions about personal life.
It is indisputable, therefore, that these cases generate serious problems in the daily life of the employee. Especially when your appeals are ignored or kept to yourself.
What are its effects of an indirect contract termination?
When the indirect termination request is approved, the employee may consider his contract with the company terminated and free to be hired by another organization. In addition, he can claim in court the payments and indemnities arising from the decision.
The employer does not suffer any damage, he only has to pay the former employee all of his labor rights. In cases of bullying, sexual harassment and other similar crimes, obviously, the boss is responsible for these acts, serving the sentences that are sentenced by the judge.
It is worth mentioning that, for the employer, the company's bad reputation may also remain, especially if the case reverberates in the location where the company is located. This can affect future hiring, as people will be afraid to work for the organization.
How is the calculation done in this type of termination?
As in the traditional layoff, the calculation of the amount that the company must pay to the dismissed employee comes from the sum of the following items:
- monthly salary (proportional to the days worked after the last payment);
- overdue and proportional vacations, plus 1/3;
- thirteenth salary proportional to the months worked;
- amounts deposited with the FGTS, with an addition of 40% of the amount (referring to the indemnity);
- notice, as provided for the category.
It is worth remembering that, in the case of indirect termination, the employer also receives guides for applying for unemployment insurance and, if you do not have another contract in view, you can request the appeal at Caixa Econômica Federal (CEF).
In the case of abuse and harassment, if determined by the courts, the employer must also pay compensation to the employee, in order to repair possible damage that may have been caused.
Let us go to a practical example of this calculation?
It is worth starting by pointing out that the indirect termination concentrates the same rights reserved for an employee who has been dismissed without just cause. Are they:
- balance due from their wages;
- early warning;
- vacations (full and proportional), the value of which is 1/3 of the total;
- 13th (full and proportional);
- FGTS and the respective fine of 40% of its value;
- unemployment insurance.
Therefore, an employee who received R $ 2 thousand, for example, and exercises his right to obtain indirect termination of the contract after an exact year of work will receive:
- the amount of the balance corresponding to the month worked;
- prior notice (one extra salary);
- full vacation (R $ 2 thousand), plus R $ 600 (1/3) of this total;
- the 13th full payment (R $ 2 thousand);
- the cumulative FGTS for an entire year (R $ 1920, related to 8% of salaries deposited monthly, plus interest accruals) and 40% of this total.
Therefore, if a collaborator felt fit in some of the situations above – and others that we will explore below – he is entitled to the values mentioned above.
What are the main reasons for it to occur?
Indirect termination may be requested by the employee in several situations. Most of them are related to situations of abuse. Below are the main ones:
- unilaterally reducing the workload of the employee, thus affecting his remuneration;
- when the employee is required to perform tasks with excessive content, which go beyond what is possible due to the physiological characteristics of the human being;
- in case the employee is physically assaulted by the employer, except in a situation of self-defense or someone else's self-defense;
- in cases where the employee is subjected to risky or unhealthy situations without due precautions and indemnities;
- when the employer causes harmful acts about the honor and good reputation of the professional or his / her family members;
- in the event of non-compliance with the obligations of the employment contract by the employer, such as non-payment of wages on time, no permission for 30 days of vacation per year worked or the denial of other rights;
- in situations where humiliation occurs, such as moral or sexual harassment of the employee.
All of these situations, it should be remembered, must be proved by the accusatory party, because only then does the Labor Court grant the right to indirect termination.
Other situations, which are not described above, but can be framed between the lines and are very common in this type of process.
As in cases where the employer requires the employee to work overtime even against his will, prohibit the use of the bathroom during working hours, do not allow breaks recognized by law for lunch or break and others.
Situations in which the indirect termination request is not applicable
In turn, the employee – and the company's HR – must also pay attention to the fact that an indirect termination request is not configured in some situations. For example:
- the transfer of an employee to another area or unit of the company due to institutional situations;
- the requirement to perform a task that belongs to the employee;
- constructive calls for attention, and in response to inappropriate behavior.
For this, it is always important to have a frank, transparent and objective dialogue with HR professionals to correctly assess decision making.
How can an employee apply for it?
To request an indirect termination, the employee needs to file a labor claim, of a declaratory nature, so that contact with the employer will be made directly by the judiciary, thus avoiding other constraints.
It is important that, as soon as he decides to file a process to obtain this type of dismissal, the employee requests the communication from the boss. If you simply start to miss work, you can characterize your job abandonment and suffer dismissal for a just cause.
Through documentary evidence and the testimony of witnesses who can prove the accusations made, the process is usually not very long.
It is not mandatory for the employee to have a lawyer to file this type of action, but it is recommended that both parties have legal support, as this is the only way to make sure that the decision made in the sentence was really fair.
What is the role of HR in this case?
Non-partisan, the company's HR must investigate all types of accusations made by employees – whether they are anonymous or not.
Even more so when the complaints refer to the behavior of professionals with a higher hierarchical level, and who tend to silence the victims of these types of harassment.
Hence the importance of having communication channels that encourage, encourage and receive complaints, criticisms, suggestions, complaints and ideas from employees. The company has to be at the forefront of this, engaging the employee to express his / her opinion.
Just as it is the responsibility of HR to promptly assume an action plan to prevent new situations that generated an indirect termination from recurring.
Now that you know a little more about indirect termination, how about reading our article “What do I pay on termination? Ask questions! ”? There, you will know all the rights that must be paid to the dismissed employees of your company.