Ruling by the Guimarães Court of Appeal of 16-06-2016

Practice – Statutory Holidays 

This ruling considers the lawfulness of an employer's decision to cease granting a day of statutory holiday to employees on Shrove Tuesday and St. John's Day, after having initiated this practice without any loss of remuneration, twenty years hence. The Guimarães Court of Appeal (GCA) upheld the decision taken by the Court of First Instance, whereby granting a day of statutory holiday to employees was tantamount to a labor practice, which had become binding, as “it displays the features of universality, since it was applied to all employees without distinction; fixity, since it remained unchanged over many years, and consistency, since, as has been proven, it was adopted throughout a twenty-year period”.

The GCA, therefore, ruled that the employer could not unilaterally withdraw a concession, which, by dint of its definition as a practice, had become binding. 

Ruling by the Supreme Court of Justice of 14-07-2016

Employment Contract – Termination by the employee – Lawful grounds for termination – Termination - Declaration 

In the case under review, the Supreme Court of Justice (“SCJ”) was requested to rule on the lawful termination of an employment contract by the employee. In short, the Court ruled that merely referring to a specific subparagraph of Article 394 (2) of the Labor Code as the applicable provision does not provide a sufficient legal basis for termination of contract. Instead, specific facts that may be subsumed under one of the said subparagraphs must be indicated. 

In this particular case, the employee terminated the contract on the grounds of non-payment of overtime work, in addition to non-compliance with the legal provisions governing the employee's working hours and rest periods. The question arose as to whether this justification met the legal requirement of “a summary of the underlying facts”.

The SCJ ruled that the employee's justification merely comprised allusions to general concepts and in particular to the legal characterization of a form of work foreseen in law, which not having been substantiated through references to time and place, could not be considered sufficient grounds for termination of contract. Hence, the employee had not met the requirements of due process to lawfully terminate his employment contract, thereby becoming civilly liable before the employer. 

Ruling by the Porto Court of Appeal of 07-07-2016

Accident at Work – Disqualification of the accident - Gross negligence – Assessment of predictability

The ruling in question analyses the employer's exemption from liability on the grounds of disqualification of the accident at work. According to the law, when the accident solely occurs by dint of the victim's gross negligence, there is disqualification of the accident. In this particular case, the question arose as to whether the law encompasses the employee who suffers an accident at work while performing his tasks without complying with the rules laid down by the employer. 

According to the Porto Court of Appeal (PCA), the mere fact that the employer has issued rules does not automatically disqualify an accident, even if the employee does not comply with such rules. On the contrary, effective understanding of the rules, or at least, evidence that the employee did not face any obstacles to understanding them, in view of his level of education and access to information, must be provided, in addition to demonstrating that it was his failure to comply with the rules that led to the accident. 

The Court found that a case falls under article 14 (1) (b) of Law no. 98/2009, of 4 th of September, when it can be evidenced that the victim was grossly negligent and that such negligence was the sole cause of the accident. “A slight fault such as carelessness, distraction or lack of caution is not sufficient grounds [to disqualify the accident]; instead behavior must be shown to have been reckless or devoid of a basic sense of care” concluded the Court.