Dismissal is never an easy task for HR and the personal department. Dismissing an employee from the company is not only a delicate moment, but also has constitutional bureaucracies foreseen in the CLT law.
Therefore, it is essential that the professionals who take care of this routine companies are always prepared for this moment – especially knowing what are the rights of the dismissed worker.
It is important to note that all termination it can start from both the employee's and the employer's wishes.
Therefore, there are some types of layoffs provided for by CLT law and each of them has its particularities.
To help facilitate the day-to-day life of the personnel department, we will explore in this article what are the rights of the dismissed worker. Thus, it will be easier to identify the possible scenarios in a contract termination and what HR should do in each one.
What are the rights of the dismissed worker under the law
To find out what are the rights of the dismissed worker, it is necessary to first know the CLT law and its peculiarities in relation to the article 477.
Art. 477. Upon termination of the employment contract, the employer must make a note in the Work and Social Security Card, communicate the dismissal to the competent bodies and pay the severance payments within the period and in the manner established in this article.
Proportional vacations, unemployment insurance and the release of FGTS are some of the points to note when terminating.
Recalling that the contractual terminations are effectively made official in the signature of the TRCT (employment contract termination term).
Through this document it is possible to see what are the rights of the dismissed worker. It contains data such as amounts to be paid by the company to the employee and also the date of admission and dismissal
What should be paid on dismissal
Identifying what are the rights of the dismissed worker is essential for workers to dismissal processes carried out correctly, with due respect for the law.
So let's quote what are the rights of the dismissed worker Right below. Check out!
Wage balance
It is the payment made for the employee's working days. An account is made where the professional's salary is divided by 30, to find out the amount earned per day, and multiplied by the days worked.
Overtime
This obligation is foreseen in the article 59 of the CLT. Therefore, in all cases of termination, the extra hours worked must be paid to the employee.
Early warning
In cases of notice, the employer has two options.
The first is to notify the professional 30 days in advance of dismissal and ask him to work another month and receive his full salary.
Or else, he can pay those 30 days and decide that the employee no longer needs to attend the company.
Proportional vacations
Every year worked, every professional has the right to receive vacation, a full salary, plus 1/3.
Upon termination, holidays are proportionally paid. That is, if the professional worked 6 months, the amount due will be 6/12.
Recalling that the month only enters the account if the employee worked more than 14 days in the period.
13th salary
If the employee has not completed 1 year of work, which entitles him to the 13th salary, as well as on vacation the payment is proportional.
It is counted from the employee's first day of work until his departure, including the month of notice. Thus, if he worked 6 months plus 1 month notice, he will receive 7/12 of the 13th salary.
FGTS
The FGTS payment differs in relation to dismissal without just cause, for just cause and with the new reform by consensual dismissal.
In the case of unfair dismissal, the employer pays 40% fine on the deposited amount and the employee can withdraw the amount.
In the just cause there is no payment of a fine and the FGTS is blocked. And in the new consensual dismissal the employee pays 20% fine about FGTS.
Types of contract termination
Knowing what the law says, we now need to know what types of contract termination to analyze what are the rights of the dismissed worker. Check, now, what are the types of termination:
- Resignation without just cause;
- Dismissal for just cause;
- Resignation without just cause;
- Resignation for just cause;
- Consensual Dismissal.
- Reciprocal Guilt;
Before new labor reform a termination could come only from the employee or the employer.
However, it is now possible that there is a dismissal by mutual agreement, the so-called consensual dismissal, which offers some rights to the dismissed worker.
Dismissal without cause
Unjustified dismissal part of the employer.
For this reason, the company must always be aware of what are the rights of the dismissed worker, if that is the case.
Therefore, the dismissal of just cause gives the employee the following rights:
- Wage balance;
- Proportional thirteenth;
- Proportional vacation plus 1/3;
- Unemployment insurance;
- Early warning.
Noting only that in the case of early warning the employer who decides whether the employee works another 30 days or pays a salary and allows him to leave early.
Dismissal for just cause
This decision also part of the employer and is imposed whenever there is any rule break or employee disrespect in relation to company and contract rules.
The professional loses all his rights as unemployment insurance, proportional vacation plus 1/3, advance notice, 13th salary and a fine on the FGTS, in addition to its withdrawal.
Workers under one year are entitled to the balance of wages and family allowances.
And those who are dismissed for just cause and have already spent more than 1 year in the company receive their monthly salary, overdue and / or proportional vacation and family allowance.
Resignation without just cause
The resignation without just cause part of the employee.
Although he loses rights as unemployment insurance, a FGTS fine and the withdrawal of this benefit, some rights are preserved. Are they:
- Wage balance;
- Proportional 13 °;
- Proportional and / or overdue vacation plus 1/3.
In this case, the employee must necessarily comply with 30 days notice.
However, the employee has the right to request a waiver before this period is fulfilled, and it will be at the company's discretion whether or not to comply with that request.
Resignation with just cause
Just as the company can be disrespected by the employee and dismiss him for cause, the reverse can also happen.
Resignation with just cause is an employee's right when the employee employer does not comply with the legal obligations of the contract and the law.
If in the termination of contract for just cause we already know what the rights of the dismissed worker are, we will now know the rights of the employee in this case.
Who resigns for just cause has the same rights as those dismissed without cause.
- Wage balance;
- Proportional 13 °;
- Proportional vacation plus 1/3;
- Unemployment insurance;
- Early warning.
Usually these cases are resolved in court in cases of moral harassment, non-payment of FGTS, non-payment of overtime and etc.
Consensual dismissal
The new labor reform brought numerous changes in relation to the CLT law.
Mainly what are the rights of the dismissed worker. If there is even the inclusion of a new type of dismissal, the so-called consensual resignation.
In this specific case, both parties agree to the termination. Therefore, there is a common agreement on breach of contract.
However, unlike other types of layoffs, changes have been made regarding the rights of the dismissed worker.
Upon consensual dismissal, the employee will be entitled to:
- 20% of the FGTS fine: 20%;
- Half the amount of notice;
- And you can withdraw 80% of the FGTS amount.
Consensual dismissal is foreseen in the article 484 of CLT:
“”The employment contract may be terminated by agreement between employee and employee”.
Reciprocal guilt
THE reciprocal guilt it is envisaged in article 484 and it occurs when both on the part of the company and on the part of the employer there is a breach of rules to be complied with.
Like both parties are to blame, the rights of the dismissed worker are reduced.
Check below what are the rights of the dismissed worker in this specific case:
- Wage balance;
- Overdue holidays plus 1/3;
- 50% of proportional vacations plus 1/3;
- 50% of the prior notice;
- 50% of the proportional 13th;
- 20% fine on FGTS.
In cases of dismissal for reciprocal fault, the cases always go to court. Since whoever determines if there is evidence for this to happen is a labor judge.
The importance of HR and respect for workers' rights
To know what are the rights of the dismissed worker it is essential for the personal department to comply with the necessary bureaucracies related to the law.
Respecting employee rights avoids labor lawsuits and unnecessary stock expenditures.
The moment of dismissal is always very delicate, regardless of the type or the case in which it fits.
Not having trained professionals, therefore, can make everything more difficult since there is a demand not only for knowledge of the law, but an emotional burden involved.
Whether for just cause, without just cause or by consent, every type of dismissal has its particularities and rights of the company and employee as we could see.
Therefore, all agreements and payments involving CLT need special attention.
Was there any doubt regarding the theme? Leave a comment in the article that will help you to better understand the subject.
