CONTENTS EMPLOYMENT LAW NEWSLETTER I FEBRUARY, 2017 I EXTENSION ORDERS 2 II NATIONAL CASE-LAW 5 NEWSLETTER I EMPLOYMENT LAW WWW.CUATRECASAS.COM NEWSLETTER I EMPLOYMENT LAW 2/10 EMPLOYMENT LAW NEWSLETTER I EXTENSION ORDERS Area of Activity Order Merchandising Services Order no. 48/2017 - Diário da República no. 24/2017, Series I of 2017-02-02 Establishes the extension of the amendments to the collective bargaining agreement between the ANESM - National Association of Merchandising Services Companies and the Workers and Services Technicians Trade Union - SITESE. Hotels, Restaurants and Similar Order no. 49/2017 - Diário da República no. 24/2017, Series I of 2017-02-02 Establishes the extension of the collective bargaining agreement and respective amendments between the Portuguese Association of Hotels, Restaurants and Similar (AHRESP) and FESAHT - Portuguese Farming, Food, Beverages, Hospitality and Tourism Trade Unions Federation. Garment Industry Order no. 54/2017 - Diário da República no. 25/2017, Series I of 2017-02-03 Establishes the extension of the amendments to the collective bargaining agreements between the National Association of the Clothing, Manufacturing and Fashion Industry - ANIVEC/APIV and the Portuguese Textile, Woollen, Clothing, Footwear and Hides and Skins Workers Trade Unions Federation - FESETE and between the same employers association and the Industry, Energy and Transport Trade Unions Federation - COFESINT. WWW.CUATRECASAS.COM NEWSLETTER I EMPLOYMENT LAW 3/10 Distribution Order no. 55/2017 - Diário da República no. 26/2017, Series I of 2017-02-06 Establishes the extension of the amendments to the collective bargaining agreement between the Portuguese Distribution Companies Association (APED) and FEPCES - Portuguese Trade, Offices and Services Trade Union Federation and others. Pharmaceutical Industry Order no. 56/2017 - Diário da República no. 26/2017, Series I of 2017-02-06 Establishes the extension of the amendments to the collective bargaining agreements between the Portuguese Pharmaceutical Industry Association - APIFARMA and the Industry, Energy and Transport Trade Unions Federation - COFESINT and other and between the same employers’ association and the Workers and Service Technicians Trade Union - SITESE, and of the collective bargaining agreement and respective amendments between the same employers’ association and the Metalworking, Chemical, Electrical, Pharmaceutical, Pulp and Paper, Graphical, Printing, Energy, and Mining Inter-Trade Union Federation - FIEQUIMETAL and other. Hotels, Restaurants and Similar Order no. 57/2017 - Diário da República no. 26/2017, Series I of 2017-02-06 Establishes the extension of the collective bargaining agreement and its amendments between the Portuguese Association of Hotels, Restaurants and Similar (AHRESP) and the Workers and Services Technicians Trade Union - SITESE. WWW.CUATRECASAS.COM NEWSLETTER I EMPLOYMENT LAW 4/10 Road transport of heavy passenger vehicles Order no. 63/2017 - Diário da República no. 29/2017, Series I of 2017-02-09 Establishes the extension of the collective bargaining agreement between the Road Transport of Heavy Passenger Vehicles National Association - ANTROP and the STRUP - Portuguese Road and Urban Transport Workers Trade Union. Woollen Manufacture Order no. 64/2017 - Diário da República no. 31/2017, Series I of 2017-02-13 Establishes the extension of the amendments to the collective bargaining agreements between ANIL - Woollen Manufacture National Association and other and the Portuguese Textile, Woollen, Clothing, Footwear and Hides and Skins Workers Trade Unions Federation - FESETE and between the same employers’ association and other and the Industry, Energy and Transport Trade Union Federation - COFESINT. Trade and Services (Algarve) Order no. 65/2017 - Diário da República no. 31/2017, Series I of 2017-02-13 Establishes the extension of the amendments to the collective bargaining agreement between the Algarve Region Trade and Services Association - ACRAL and CESP - Portuguese Trade, Office and Services Workers Trade Union and others. Healthcare Order no. 71/2017 - Diário da República no. 36/2017, Series I of 2017-02-20 Establishes the extension of the collective bargaining agreement between the FNS - National Federation of Health Care Providers and the Industry and Services Trade Union Federation - FETESE. WWW.CUATRECASAS.COM NEWSLETTER I EMPLOYMENT LAW 5/10 II NATIONAL CASE-LAW Ruling by the Oporto Court of Appeal, of December 15, 2016 Professional e-mail account with undefined use – confidentiality of messages In special proceedings to challenge the lawfulness and compliance with legal formalities of a dismissal procedure, the Defendant, the employer, presented the written proceedings setting out the grounds for dismissal of the Plaintiffs. In short, the latter had been accused of dealing with various personal affairs and sideline activities during their working hours, which were in direct competition with the Defendant's business activity, were for their personal gain or for the benefit of third parties. They had also stolen property belonging to the Defendant and used their work tools and working hours to conduct these sideline activities. The employer attached copies of a large number of e-mails and files stored on the employees' computers to the case file, as evidence to support his allegations. The employees claimed such evidence to be null and void, under the auspices of the right to confidentiality and privacy, alleging that the employer had never defined rules concerning the use of communication media in the company. In short, the Court of First Instance made the following findings concerning e-mails and data on e-mail correspondence: The contents of messages obtained by accessing employees' or third-parties' e-mails held on personal e-mail accounts may not lawfully be presented as evidence; The contents of e-mails sent or received using employees' professional accounts may be considered as evidence, providing that the messages are not flagged as being personal and that the personal nature of such messages is not obvious from their contents; Data concerning the flow of e-mail correspondence sent and received by employees using their professional e-mail accounts or other e-mail accounts belonging to them or to third parties can only be accepted as evidence with regard to such data. The employees appealed against this ruling to the Oporto Court of Appeal with regard to the last two findings. With regard to personal e-mail messages on a professional account, jurisprudence distinguishes between those situations in which the employer has defined and communicated rules on the use of the e-mail account he has provided, according to which the account must only be used for professional purposes, and those situations in which the professional e-mail account may be used for both professional and personal purposes, without distinction, or when no such rules have been established. In the former scenario, according to jurisprudence, the employer “presumes” that e-mail WWW.CUATRECASAS.COM NEWSLETTER I EMPLOYMENT LAW 6/10 messages sent from the professional e-mail account concern professional matters. The Oporto Court of Appeal, however, considered that even when the employer has established rules whereby the e-mail account must only be used for professional purposes, should the employer open the contents of an e-mail message sent from or received in the professional email account and discover that in actual fact, the message is of a personal nature, he must not familiarize himself with its contents, and must stop reading. Hence, presenting it as evidence is clearly out of the question, since this would violate the right to secrecy of correspondence. In the latter scenario, in the absence of any rules, the employer must accept that the e-mail account may also be used for personal matters; thus, there are no grounds for the employer to presume that it will only be for professional purposes. Therefore, when employees are provided with a professional e-mail account without any rules for its usage having been defined, which is the case in hand, the employer cannot open the contents of messages sent from or received in this account, even if they are not flagged as being personal, in view of the employees' legitimate expectation that their right to confidentiality of e-mail correspondence will be respected by their employer. With regard to data concerning the flow of the Plaintiffs' e-mail correspondence and attachments thereto, the Court of Appeal overturned the Court of First Instance's ruling, with the following decision: Data concerning the flow of e-mail correspondence through employees' personal email accounts is encompassed by the right to secrecy and inviolability of communications. Even if this were not the case, whenever the employee has not defined rules and prohibited the use of personal e-mail accounts, checking the flow of correspondence through such accounts would still be unacceptable. With regard to data concerning the flow of e-mail correspondence through professional e-mail accounts that can be used without distinction for professional and personal purposes, the employer may obtain the date and time at which the message was sent and obtain the identity of the sender and/or recipient when it is the employee, but cannot obtain the identity of a third-party sender and/or recipient. With regard to email attachments, their contents are also protected by the right to secrecy of correspondence, but not the external data (type and size). Hence, the Oporto Court of Appeal considered documentary evidence as unlawful and as a result null and void, when it contains (i) the contents of all e-mail messages sent or received at employees' professional accounts when rules have not been defined concerning the use of such accounts for personal purposes and (ii) data concerning the flow of e-mail messages, and e-mail attachments, sent or received by the Plaintiffs, at the aforementioned professional accounts or their other accounts, or third party e-mail accounts (with the exception of WWW.CUATRECASAS.COM NEWSLETTER I EMPLOYMENT LAW 7/10 professional e-mail accounts which are used without distinction for professional and personal purposes, for which the employer can obtain the date and time at which an e-mail message is sent, the external data of attachments, but not the identity of a third-party sender and/or recipient). Ruling by the Évora Court of Appeal, of December 7, 2016 Administrative labor offence - harassment In the case under review, the employer, the defendant in administrative labor proceedings, challenged the Authority for Working Conditions' decision to impose a fine for each count and a single fine for having made unlawful deductions from an employee's monthly remuneration and for harassment of the said employee. Such fines were imposed as a result of the employer having proposed to the employee, who was employed as a Director of Engineering, that his employment contract be terminated by mutual agreement. This proposal was rejected by the employee, with the employer having subsequently demoted him from the position he had held until then, made deductions from his earnings for uncertified absences (although, no proof was submitted to attest to the employee's absence) and initiated disciplinary proceedings against the employee on the grounds of the said uncertified absences, which resulted in his dismissal, which in turn was judicially challenged. After an injunction had been granted to suspend the dismissal, the employer reinstated the employee and assigned him “an office located far away from the premises where he had worked previously, cut off from his colleagues and the team he had previously managed. This office was located in an outhouse which was only used for reaching the toilets and was next to a storage facility which was only accessible during the warehouse staff's working hours and furnished with only a desk and a chair; the employee having only been supplied with a pen; a note-pad and a rubber”, in addition to the employee having been ordered to “record working times, which was only applicable to the warehouse staff”. The Court of First Instance rejected the challenge proceedings, with an appeal having thus been lodged with the Évora Court of Appeal, which was called to rule on whether the employer's actions were tantamount to moral harassment. On the grounds of employees' right to physical and moral integrity and the prohibition of harassment set out in Article 29 of the Labor Code, the Évora Court of Appeal rejected the employer's case. In fact, in addition to sexual harassment, the prohibition of harassment also encompasses discriminatory moral harassment, commonly referred to as mobbing, which is “repeated cruel and unfair treatment of employees, generally perpetrated by supervisors or by their employer, generally on the basis of one of the grounds foreseen in article 24, the aim of which is to WWW.CUATRECASAS.COM NEWSLETTER I EMPLOYMENT LAW 8/10 undermine the dignity of the target, possibly resulting in him ultimately opting to resign from his job.” The Court considered that “it is not the willful intent to, but merely having caused distress to the employee that has to be proved for the employer's behavior to be considered as harassment: but, despite lawmakers having dispensed with willful intent, any and all forms of harassment generally involve an unlawful, or at the very least, a morally reprehensible aim.” In this particular case, the Court concluded that there had been consistent practices against the employee for at least 4 months, with the aim of convincing him to accept termination of his employment contract, or even to lead him into taking the initiative of resigning from his job, and that the aforementioned acts carried out by the employer were tantamount to humiliating and degrading treatment. The Court thus ruled that the administrative offence in question had indeed been committed, thereby upholding the decision of the Court of First Instance, even if it had not been committed with intent. Ruling by the Guimarães Court of Appeal, of June 16, 2016 Practice – Statutory holidays A Trade Union applied for declaratory relief in ordinary proceedings by seeking that the Defendant, the employer, be found guilty of having unlawfully decided to cease granting a day of statutory holiday to employees on Shrove Tuesday and the official holiday of St. John's Day, without any loss of remuneration. The ruling handed down by the Court considered the employer's decision unlawful in respect of the official holiday of St. John's Day, but acquitted the employer with regard to the rest of the complaint, namely observance of Shrove Tuesday. Prior to 2013, the employer had always granted a day of statutory holiday to all employees on Shrove Tuesday and the official holiday of St. John's Day, throughout their entire period of service (some of them having over thirty years' service), allowing employees to not have to report for work on those days without any loss of remuneration. Notwithstanding, in 2014, the employer withdrew the days of statutory holiday on Shrove Tuesday and St. John's Day and deemed any absence from work on those days as an uncertified absence. The Court of First Instance drew a distinction between the official holiday on St. John's Day and Shrove Tuesday, having ruled that the employer's decision with regard to Shrove Tuesday was lawful. The decision was based on transposing the civil service model to these employees; the Court substantiated this assimilation on the fact that a special day-off on Shrove Tuesday started to WWW.CUATRECASAS.COM NEWSLETTER I EMPLOYMENT LAW 9/10 be granted in the private sector precisely by way of alignment with the special day-off granted to civil servants. Since this special day-off had in the meantime been discontinued, Shrove Tuesday having become a normal working day, it would be lawful to discontinue the practice in the private sector, too. The Court of Appeal's findings ran counter to this interpretation, by upholding that claiming such assimilation was a politically-motivated reasoning, which was not substantiated by the facts of the case, and that there were hence no grounds for such assimilation. Therefore, bearing in mind that practices are currently a true source of labor law and that, in this particular case, in the local area where the employer's activities were located, all employees were habitually granted a day-off on Shrove Tuesday, this practice became binding given its consistency over time and universal application, thereby acquiring the characteristics of a labor practice. The Court, therefore, ruled that there were no grounds for drawing a distinction between the official holiday of St. John's Day and Shrove Tuesday, since this constant practice over the referred long period of time of granting a day-off on Shrove Tuesday without any loss of remuneration is a “constant, uniform, universal and consensual practice which is not grounded in any collective regulatory instruments. It is therefore relevant to individual employment contracts by dint of being a set practice”, has become binding and cannot be discontinued unilaterally. 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