“Prior notice” is the period that elapses after the termination of a collaborator without just cause.
This time is important for both the employer and the employee. It guarantees the company a deadline to replace the employee and assures the professional time to look for another job vacancy.
Informing the employee about the dismissal is provided for in Law No. 12,506, of 2011. However, this process has specificities that vary according to the context of the dismissal. So it is an issue that raises doubts.
Want to know how the notice works? Check out all the details in this post! So, good reading!
What is notice?
THE Consolidation of Labor Laws (CLT) guarantees both the employer and the employee the right to break the employment relationship at any time. Even if there is a contract and there is no just cause, both parties can end the call.
However, the shutdown need to be informed to the interested party with at least 30 days in advance – this is called “advance notice”.
Therefore, if you have a company, you must inform the employee about the shutdown process. Likewise, as an employee, you will need to inform the company that you intend to leave.
How does it work?
Now that you know what early warning means, it's important to understand how it works.
THE termination of employment contract style=”font-weight: 400;”> and the option for dismissal can come from both the employer and the employee.
When the termination option leaves the company, it will choose whether the employee will complete the period working or be dismissed immediately. In case the termination is an initiative of the employee, by means of a request of resignation, it will also be up to the company to decide whether or not to comply with the notice.
There are specificities for both situations, as we will show below.
The types of notice
There are 3 possibilities for complying with this announcement: advance notice worked, compensated or fulfilled at home.
They vary according to the cause of the shutdown and the option of the employing company itself. See how each works in different types of situations:
As the name already indicates, the employee performs his duties in the company. However, there are some peculiarities about this.
1. When the company dismisses the employee
If the company decides to send the employee away, it may require him to work for a period of 30 days. For this situation, the employee has the right to work two hours less per day or not to work for seven days at the end of the term.
If the employee does not comply with this period or is absent, he runs the risk of having wage discounted at the time of termination.
Termination must be paid on the first business day after the end of the employment contract, that is, after the last day of notice.
2. When an employee resigns
If the employee has taken the initiative to leave the company, he or she can make an agreement to comply with the notice for the next 30 days.
At the end of this period, the employee will receive the salary for the days worked, an amount proportional to the vacation and to 13th salaryThe. THE termination it is paid in the same way as described above, which is on the first business day after the end of the employment contract.
There is no need to work here, but there are still some peculiarities. Follow:
1. When the company dismisses the employee
When the termination leaves the company and the employee does not want the employee to complete the 30 days, he / she must pay the full salary for this period anyway.
This decision is made exclusively by the company, which can choose not to comply with the notice in the event of dismissal. Termination payment must be made within 10 calendar days after the termination date.
2. When an employee resigns
When the resignation leaves the employee and he cannot work in the next 30 days, he must pay the termination fine (one month's salary), which will be deducted from the amount related to the settlement.
This case is called prior notice indemnified by the worker. However, the collection of the fine for non-compliance is optional by the company.
In this case, the termination payment is also made within 10 days after the date of dismissal.
Notice fulfilled at home
Unlike the previous options, the notice fulfilled at home it is not a situation provided for by law (although quite common).
This occurs, in general, in cases of dismissal agreement in which the company asks the employee to fulfill his period without going to the company to work. That is, the professional's activities are done at home.
In most cases, companies propose this condition to have more time in the term of payment of the termination. If the company chose the severance notice, it would have to make the payment 10 days after the dismissal.
With this agreement, organizations can make payment after 30 days of the communication (even if it has not been fulfilled).
It is also important to be aware of the changes in the law, which we will discuss in the next topics. Follow us!
What is proportional notice?
In October 2011, the law that determines the right to proportional prior notice came into force. This law guarantees that, in addition to the 30 days, 3 days can be added for each complete year worked in the company, being limited to 90 days.
This means that for each year worked, the employee has 3 more days (in addition to the usual 30 days).
The minimum notice period is 30 days. However, this period can be increased according to the duration of the employment bond, if the dismissal comes from the employing party.
Now, if the termination request comes from the employee, the time is fixed and only 30 days.
To understand how the law works, check out the table bellow:
|Working time||Early warning|
|Before 1 year||30 days|
|1 year||33 days|
|2 years||36 days|
|3 years||39 days|
|4 years||42 days|
|5 years||45 days|
|6 years||48 days|
|7 years||51 days|
|8 years||54 days|
|nine years old||57 days|
|10 years||60 days|
|11 years||63 days|
|12 years||66 days|
|13 years||69 days|
|14 years||72 days|
|15 years||75 days|
|16 years||78 days|
|17 years||81 days|
|18 years||84 days|
|19 years old||87 days|
|20 years||90 days|
Provisional stability during early warning
As during the employment contract period, the CLT guarantees the worker temporary stability in some situations during early warning. In this way, the employee has time to adapt to the new situation.
In what situations does this right exist?
In the case of pregnancy during this period, the law guarantees the employee employment stability for up to five months after delivery.
As for employees who have suffered some type of occupational accident or occupational disease throughout the warning, their stability is guaranteed for a period of one year after discharge given by doctors.
What are the specific warning cases?
In this topic, we will address some of the most common questions when it comes to early warning. You will see some very specific situations regarding compliance with the law. Check out!
When does the notice not apply?
If the employee breaches any company rules or commits a serious misconduct, he may be fired for cause. In these situations, there is no obligation on the company to pay for prior notice.
In addition, during the fulfillment of the notice worked, the employer can also dismiss the employee for just cause if he presents behaviors that justifies it.
In this particular situation, there is a review of all payments to which he would be entitled.
What are the consequences in case of non-compliance?
From the moment when the company or employee decides to carry out the termination, and choose or not to comply with the notice period, it is necessary to be aware of the consequences of a possible non-compliance.
If the company does not make the payment within the period established by law, the employee has the right to receive the amount referring to an additional salary together with the settlement amount.
It is worth remembering that, in the case of indemnified notice, payment is made up to 10 after the termination of the contract. For the worked notice, the payment must occur on the first business day after the end of the period.
If the problem is related to the employee not fulfilling the agreement, the company has the right to discount the payment referring to the missing days.
In view of the current panorama caused by the COVID-19 pandemic, we must be aware of changes in the law!
One new rule allows the workers who were complying with prior notice can be hired again by the company. There was already a possibility to cancel the notice, but this law reaffirms the possibility. With this, companies can assist employees in some way during this period of crisis.
It is worth remembering that, if the professional finds a new job during the notice period, he may terminate his activities at the former employer before the deadline and receive full payment for it. For this, it is necessary to prove the existence of the employment contract with another company.
When deciding to leave, both the company and the employer must sign a contract attesting to what has been agreed between the two sides.
There are good early warning models available on the internet. Check below a very simple example to use in your company.
Early warning template
Sir (Name of employee)
We use the gift to communicate to you. that your services will no longer be used by this employer.
(If the employee is released from notice, add the line below)
Being exempted from complying with the prior notice.
(If the employee is not released from notice, add the lines below)
The notice of 30 (thirty) days will be worked out, counting from the first day following the date of delivery of this document, being possible to choose the reduction of 7 consecutive days or 2 hours daily, and the option is mandatory in this act.
() Reduction of 2 (two) hours daily
() Absence from work for 7 calendar days
Place and date
(company stamp and signature)
Aware: __ / __ / __
(signature of the employee or his legal guardian)
We have seen that understanding how the Prior Notice works legally avoids headaches and facilitates the shutdown to occur more smoothly. Therefore, make sure that both the company and the employee fulfill their duties fairly.