Filipe Azoia October 12 2016 Supreme Court considers lawfulness of employee dismissal Abecasis, Azoia, Moura Marques & Associados | Employment & Immigration - Portugal Filipe Azoia Employment & Immigration FactsDecisionA June 16 2016 Supreme Court of Justice decision (Case 3008/14.5TTLSB.L1.S1) is one of the most important recent developments in Portuguese case law. The court had to evaluate:the lawfulness of a dismissal as a result of an irregularity in the employee disciplinary proceedings due to a violation of the adversarial principle; andthe right to a defence in disciplinary proceedings.FactsThe employee sought a declaration that the dismissal had been irregular and unlawful. He argued that the disciplinary proceedings used to dismiss him had been irregular, as the person handling the proceedings had not presented her case regarding a request to provide details of an account that allegedly existed between the company and the employee, which the employee had presented in his response to the notice of fault.The court held that, in not presenting her case regarding the request to present details of the account, the person handling the proceedings had violated the adversarial principle and the right to a defence in the context of disciplinary proceedings. As a result, the proceedings were invalid.The court highlighted that, although an employer can refuse to take steps regarding the defence requested by an employee because it considers them to be inappropriate, it must provide grounds for the refusal, as this is the only way for the court to decide whether the person bringing the proceedings is acting correctly.As the person bringing the proceedings had not presented her case regarding the request, it was impossible for the employee to defend himself, because – faced with the refusal of the request and the reasons presented – the employee could have adopted a different defence strategy, including considering the grounds invoked to refuse the evidentiary step requested.However, although the employee had invoked the alleged unconstitutionality of Article 389(2) of the Employment Code, as it violates the proportionality principle and the prohibition on excess set out in Article 18 of the Constitution, the court held that the employee was in the wrong and that the dismissal was not irregular or unlawful.DecisionThe Supreme Court of Justice decided that the effects of the irregularity in the proceedings referred to in Article 389(2) of the Employment Code were arguably weaker than those of an unlawful dismissal, considering the consequences of Articles 390 and 391 of the Employment Code regarding the unlawful termination of an employment contract.The compensation in this case corresponded to half of what an employee who was unlawfully dismissed would have received. This is consistent with Article 389(2) of the Employment Code, which references Article 391(1). Further, under Article 390(1), an employee is awarded no pay between the date of dismissal and the award.Therefore, the argument that the legislature was excessive regarding the consequences that it associated with a mere irregularity in the disciplinary proceedings cannot be accepted, as it clearly distinguished them from the consequences of an unlawful dismissal.For further information on this topic please contact Filipe Azoia at AAMM Sociedade de Advogados RL by telephone (+351 211 940 538) or email ([email protected]). The AAMM website can be accessed at www.aamm.pt.