Judgment of the Court of Appeal of Porto of 2014-02-10
Overtime work – Evidence through “suitable document”

In the judgment under consideration, the Court of Appeal of Porto ruled, among other things, on the concept of “suitable document” for the purposes of the recognition of the employee’s credit corresponding to the payment of overtime work more than five years overdue (Article 337(2) of the Labour Code).

The concrete question submitted to the Court in this case was whether the overtime work rendered – on Saturdays, Sundays and holidays – more than five years ago could be proven based on the information contained in tachographs and travel sheets .

Analysing the above-mentioned legal provision, which sets out that evidence of the overtime work rendered more than five years earlier must be provided by means of a “suitable document”, and based on the case law of the Supreme Court of Justice , the Court justified the existence of a special legal framework on evidence with the need to protect the position of the employer, in particular, with regard to claims that have become due long ago, the proof of which could be difficult as the passage of time «dilutes the evidence or at least makes it more difficult to provide evidence leading to the formation of a firm conviction».

For the Court of Appeal of Porto, and, incidentally, in line with the Supreme Court of Justice, a “suitable document” to prove overtime work, rendered and that has been due for more than five years, translates into a «document issued from the employer itself that has, by itself, sufficient evidential value to demonstrate the existence of facts that give rise to the claim, without resorting to other evidence, in particular witness evidence».

In the case under consideration, the documents consisted of travel sheets and tachographs, which documents are not issued by the employer, for which reason the Court concluded that they were not suitable.

The Court further observed that the inadequacy of the documents was also confirmed by the fact that the employee had strengthened the documentary evidence with testimonial evidence to confirm the credibility and trustworthiness of those documents .

In that connection, the Court considered not proved the overtime work rendered more than five years earlier, as it was based on documents not issued by the employer and, therefore, considered to be inadequate.

Judgment of the Court of Appeal of Lisbon of 2014-02-12
Collective dismissal – Criteria of selection of employees

The subject of this judgment was whether the failure to state or the insufficient indication of the criteria of selection of the employees, in the scope of collective dismissal, makes such dismissal unlawful.

The Court of Appeal of Lisbon justified the need to state the criteria underlying the selection of the employees concerned by the collective dismissal with the need to avoid arbitrary and discriminatory practices in the choice of those employees as well as to enable the employee and the court to verify the concrete application of those criteria .

The Court considered that, in the case under consideration, the criteria of selection of the employees were not stated and that the employer had merely mentioned i n the dismissal communication that those criteria were adopted either alone or jointly, without, however, referring to the criterion specifically applied to the employee in question.

Indeed, the Court sustained that the criteria stated – in general terms –  by  the employer could in theory apply in abstract terms to any other employee, therefore not enabling to verify the reasons behind the choice of a specific employee, which implied a «void in the [employee’s] understanding of the dismissal».

The Court of Appeal of Lisbon concluded that, although it may not assess the selection criteria of the employees to be dismissed in the scope of collective dismissal – since they are associated to corporate management choices – the said Court can in any case investigate if the choice of any given employee was based on objective grounds or if, on the contrary, it was due to arbitrary and contradictory motives .

Therefore, the vague and generic statement of the criteria indicated in this cas e did not enable to detect any link between the grounds invoked and the choice of the employee in question, and the failure to state the selection criteria, provided for in Article 360(2)(c) of the Labour Code, causes, in this way, the unlawfulness of the dismissal.

Judgment of the Constitutional Court No. 45/2014 of 2014-02-11

In this judgment, the Constitutional Court was requested to rule on the possible unconstitutionality of Article 13(1) and (2) of Law No. 27/2010 of 30 August – which set out the system of penalties applicable to the breach of rules on driving periods, breaks and rest periods and to the control of the use of tachographs in road transport activity .

Explaining the meaning of the rebuttable (iuris tantum) presumption contained in the legal provision under consideration, the Court argued that «if a driver fails to comply with any of the duties set out in this law and that failure is typified as administrative infraction, it is presumed that the breach is due to the fact that the employer did not adopt the measures necessary to prevent the occurrence of such administrative infraction

According to case law of the Constitutional Court, the perpetrator of an administrative infraction is deemed to be an agent who is the cause or concurrent cause of the practice of the unlawful act, that is, an agent who promoted such unlawful act by his or her action or omission.

The Court considered that the choice for an ample concept of p erpetrator in the context of administrative infraction liability – unlike the reality of criminal law – is justified by the fact that these breaches often involve the organic and operating structure of a company.

The Court went on to state that, unlike what happens in criminal law, in administrative infractions law the criterion of delimitation of the perpetrator of unlawful acts is the fact of having the duty and not having control of the fact .

Therefore, in accordance with the Constitutional Court, since the employer is legally obliged to ensure compliance with the rules relating to driving periods, breaks and rest periods, and to the control of the use of tachographs in road transport activity, the same is liable both when it has actively and directly brought about the unlawful result and in those situations in which the breach is committed by the driver in its employ .

Indeed, as it is the employer’s responsibility, as such, to organise the road transport so that the driver in its employ complies with the rules governing such activity, it is not unjustified to presume that the cause for the driver’s failure to comply with such rules is the «poor organisation of such activity».

However, the Court highlighted the rebuttable (iuris tantum) nature of the presumption, and that the employer is allowed to prove that it organised the service in terms that enabled the driver to comply with the rule in question, thereby excluding its own liability.

Accordingly, the Constitutional Court did not hold unconstitutional the rule set out in Article 13(1) and (2) of Law No. 27/2010 of 30 August, establishing a rebuttable (iuris tantum) presumption that the breach of a duty of conduct is attributable to  the employer of road transport employees.