Judgement of the Évora Court of Appeal of 28 January 2016 – Hearing of Parties – Justification of failure to attend - Fine

In the ruling in question, the Évora Court of Appeal was called on to pass judgement as to whether a party can be represented at a hearing of parties by legal counsel with special powers of attorney to confess, withdraw and enter into an agreement, without having to provide a justification for non-attendance.

Article 54, paragraph 3 of the Code of Employment Procedure (CPT) prescribes that the plaintiff is informed and the defendant summonsed to attend in person, or, when there are justified grounds for non-attendance, to be represented by legal counsel with special powers of attorney to confess, withdraw or enter into an agreement.

This provision provides the same representation arrangements for both plaintiff and defendant when either is prevented from attending. It therefore enshrines the principle of equality of arms between plaintiff and defendant, with regard to representation when prevented from attending.

By limiting representation by legal counsel to situations of justified failure to attend, the law seeks to coerce both parties to attend the hearing, since the very presence of the subjects of the breached relationship fosters dispute settlement by agreement.

Moreover, the dynamic nature of the hearing of parties promotes dialogue between them, the direct submission of claims and rebuttals, since they have the best first-hand knowledge of the employment relationship and its vicissitudes, in order to create an enabling environment for an agreement on the subject of the proceedings.

Furthermore, since the law prescribes attendance in person as compulsory, the letter of the law does not allow for any interpretation other than that the plaintiff and the defendant may only be represented by legal counsel should there be justified grounds for non-attendance. The onus of declaring the grounds for non-attendance lies with the party at fault, with failure to do so rendering it liable to a fine.

Judgement of the Supreme Court of Justice of 28 January 2016 – Just Cause for dismissal – Duty to Respect- Opposition to reintegration.

In the ruling under review, the SCJ declared the dismissal of a Director unlawful in the context of corporate restructuring, since his humiliation and disrespect for colleagues and junior staff, grounds used for his dismissal, did not reach such a level as to enable his lawful dismissal.

Under these terms and in the case under review, the SCJ underscored that lawful dismissal for just cause is based on the employee's wrongful conduct rendering it immediately and feasibly impossible to maintain the employment relationship, by dint of its serious nature and consequences.

Notwithstanding, the SCJ punctiliously clarified the fact that despite the Director having violated the rights of employees in the employer's service, in particular through insults; threats; humiliation and failure to respect rest periods, these facts were not serious enough to be accepted as grounds for his dismissal for just cause.

Moreover, the alleged facts did not render the employment relationship unsustainable, since the Director's dismissal occurred in the context of the employer's corporate re-structuring, in which his position was cut, rendering his dismissal unlawful.

With regard to the possibility of returning to the company, the SCJ considered that, given the fact that the relationship of trust between the Director and the employer had been undermined by the nature of his dismissal, his return to the company would critically disrupt the employer's operations, since the former's responsibilities required a high degree of trust between the parties.

Judgement of the Supreme Court of Justice of 18 February 2016 – Employment Contract – Termination of Employment Contract – Suspension of Dismissal – Obligation to pay Remuneration

In the above ruling, the SCJ issued a benchmark decision whereby dismissed employees are entitled to remuneration during a period of six months, even if the employer challenges the decision to temporarily suspend dismissal.

The SCJ rules that “during such time as the employee remains unemployed, he shall be entitled to receive remuneration during a period of six months, by dint of the deposit made by the employer as a condition for the appeal being awarded suspensory effect.”

Notwithstanding, “should the dismissed employee obtain a temporary suspension of dismissal at the court of first instance and the employer challenge such a decision, with his appeal being awarded suspensory effect, remuneration shall not be owed for the intervening period between dismissal and a final ruling of the court of second instance which upholds suspension of dismissal.”

Judgement of the Constitutional Court of 7 March 2016

In the ruling under review, the Constitutional Court ruled that the provision set out in article 186-O, paragraph 1, of the Code of Employment Procedure, brought in by Act no. 63/2013, of 27 August, was not unconstitutional, interpreted as follows: in a case to have an employment contract recognized, the putative employee and employer cannot, at the hearing of parties, agree that the legal relationship between them is one of service provision and thereby bring an end to proceedings, without the concurrence of the Public Prosecution Service.