The Portuguese Constitutional Court (CC) declared unconstitutional, with mandatory legal force, some provisions approved by the Law no. 23/2012, of June 25, which amended and revoked several provisions of the Portuguese Labour Code (LC), implying that some of such rules shall assume its previous wording since the date of the respective amendment or revocation.

DISMISSAL BY EXTINCTION OF JOB POSITION

The CC considered that the amendment, performed by Law no. 23/2012, of the legal criteria for selecting the job to be extinguished, in situations of multiple jobs with similar content, infringed the constitutional guarantee of employment security. After the publication of said legislation, the definition of “relevant and nondiscriminatory criteria” lied with employer, in view of the purposes underlying the extinction of job position.

Having the CC decided for the violation of the prohibition of wrongful dismissals, the declaration of unconstitutionality determines that the selection criteria of the job to be extinguished return to those included in the previous wording of article 368, paragraph 2 of the LC, which were based primarily on the seniority of the employee in the job, category and company.

In its turn, also paragraph 4 of the same provision, which aims to define the legal requirement of “impossibility of the employment relationship maintenance” – required in this kind of dismissal –, shall assume its previous wording, according to which such requirement results in the unavailability of another job compatible with the employee’s professional category, rather than the demonstration of “having observed relevant and nondiscriminatory criteria”.

DISMISSAL FOR INADAPTABILITY

As a result of Law no. 23/2012, the dismissal for inadaptability revoked the need of verifying the existence of a job compatible with the employee’s professional category. This amendment was considered unconstitutional

by the CC which means that the wording previous to the amendment of the law will remain in force. The grounds of this decision laid on the prohibition of wrongful dismissal. The need of verifying the existence of other job positions for the employee to be dismissed, as a result of this decision, will be applied to the dismissal for inadaptability in cases where no modifications to the job have taken place, whose legal framework was introduced by Law no. 23/2013 and which the CC considered not to breach the Portuguese Constitution.

RELATIONSHIPS BETWEEN SOURCES OF REGULATION

The CC also considered unconstitutional the provision of the Law no. 23/2012 providing for the nullity and reduction of provisions of collective bargaining agreements or contractual clauses, in order to establish as mandatory certain aspects introduced by the legislation in the LC. Some of the matters involved refer to compensatory rest for overtime, vacations increase, accrued overtime payment and payment for regular work performed on holidays.

The immediate connection of such matters with the rights of employees to rest, leisure and family life, as well as their nonmandatory nature, legitimizes a more favourable treatment of the same in contracts. Therefore, the relevant provision is inadequate, according to the judgment, to achieve the intended purposes, violating the constitutional reservation of collective employment regulations, thus deemed unconstitutional.