NEWSLETTER I EMPLOYMENT LAW
CONTENTS EMPLOYMENT LAW NEWSLETTER I APRIL, 2017 I LEGISLATION HIGHLIGHTS II EXTENSION ORDERS III NATIONAL CASE-LAW
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EMPLOYMENT LAW NEWSLETTER
I LEGISLATION HIGHLIGHTS
Order no. 131/2017 - Dirio da Repblica (Portuguese Official Gazette) no. 70/2017, Series I, 7 April 2017
Regulates the establishment of the Professional Internships measure
This Order establishes the Professional Internships measure, comprising support for integrating young adults into the labor market or professional retraining for unemployed persons.
The following groups will feature among the beneficiaries of this measure:
Young adults and unemployed persons, subject to certain eligibility criteria; Persons with disabilities and impairments; Members of single-parent families; Victims of domestic violence, and Refugees.
Applications may be submitted by natural or legal persons, not-for-profit organizations and those entities which have embarked upon a Special Revitalization Procedure or an Extrajudicial Corporate Recovery Plan, subject to meeting the following criteria when the application is made and throughout the period of funding (sponsoring entity):
Be legally established and registered; Meet all legal requirements for pursuing its business activity or submit proof of
having undertaken the applicable procedures; Not have any outstanding debts to the tax or social security authorities; Not have breached the IEFP, I.P. (Public Institute for Employment and Professional
Training) funding rules; Have settled any refunds payable on European Social Fund grants; Keep statutory accounts, when applicable; Be up-to-date with payment of salaries, with the exception of those entities which
have embarked upon a Special Revitalization Procedure or an Extrajudicial Corporate Recovery Plan; Not have been convicted of an infringement of labor laws in either administrative or criminal proceedings, with specific regard to discrimination in the workplace and in access to employment, in the previous three years, notwithstanding the precedence of a longer penalty imposed as a result of such proceedings.
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The sponsoring entity and the beneficiary must sign an internship contract, which in most cases will last for nine months and not be renewable. It must comply with the provisions of the Order and shall entitle the intern to a monthly stipend, the payment of which is the sole responsibility of the sponsoring entity.
The IEFP, I.P. will contribute either 80% or 65% of the monthly amount, according t o the circumstances in question.
Sponsoring entities that sign a permanent employment contract with the intern, within 20 working days of the end of the internship will receive a job premium equal to twice the basic monthly remuneration foreseen in the contract, up to a maximum of 5 times the Social Benefits Reference Figure.
The period for applications will be disseminated each year through the Institute's website: www.iefp.pt.
II EXTENSION ORDERS
Area of activity Foodstuffs
Trade, Offices and Services
Order no 118/2017 - Dirio da Repblica (Portuguese Official Gazette) no. 57/2017, Series I of 2017-03-21
Establishes the extension of the amendments to the collective bargaining agreement between ANCIPA National Association of Food Product Traders and Manufacturers and FESAHT the Federation of Farming, Food, Beverages, Hospitality and Tourism Trade Unions and others (fruit and vegetable sector).
Order no. 119/2017 - Dirio da Repblica (Portuguese Official Gazette) no. 57/2017, Series I of 2017-03-21
Establishes the extension of the collective bargaining agreement and its amendments between Viana do Castelo
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Business Association and others and the CESP Portuguese Trade Union of Trade, Office and Services Employees.
Order no. 127/2017 - Dirio da Repblica (Portuguese Official Gazette) no. 66/2017, Series I of 2017-04-03
Establishes the extension of the amendments to the collective bargaining agreement between ANCIPA National Association of Food Product Traders and Manufacturers and FESAHT the Federation of Farming, Food, Beverages, Hospitality and Tourism Trade Unions (potato crisps and appetizers sector).
III NATIONAL CASE-LAW
Ruling by the Porto Court of Appeal, 13 February 2017
Lawful grounds for dismissal False illness
The employee who worked as a trainee pastry chef brought proceedings to contest the procedural formalities and lawfulness of her dismissal, the grounds for which were essentially her absences and lack of punctuality. The employee justified them on the grounds that she was undergoing treatment for throat cancer, even having shaved her head. The employer learned that the employee was not suffering from any illness, after all.
These circumstances led to the employer making arrangements to enable the employee to attend the alleged treatment, by calling on other company employees to work overtime.
The employee contested that there were no lawful grounds for dismissal, stating that she had shaved her head as part of the practices of the Umbanda religion that she adheres to and had never mentioned that she suffered from any form of cancer nor why she had shaved her head.
The Court of First Instance found the dismissal unlawful, on the basis that there were no lawful grounds for such.
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In response to the appeal lodged by the employer, however, the Porto Court of Appeal overturned this decision on the grounds that there had been a complete break down in trust between the employer and the employee, as a result of failure to fulfil the duties of respect, decency, probity, and truthfulness.
In this case, the Court of Appeal found that, even though it had not been proved that the employee had shaved her head with a view to lending greater credibility to her alleged illness, "she had deliberately and knowingly told her employer and work colleagues that she had cancer, convincing them even though it was not true and kept up the pretense for approximately two months."
The employee's behavior had seriously infringed the duties of good faith in performing work and had thus irrevocably undermined the employer's trust in her conduct. It had thereby become impossible to pursue the employment relationship, and the dismissal was a reasonable and appropriate sanction.
The Court of Appeal, therefore, ordered the part of the contested judgement that found the dismissal unlawful to be repealed, thereby upholding the appeal lodged by the employer.
Ruling by the Porto Court of Appeal, 2 March 2017
Work accident Attempted robbery
This case concerns special proceedings arising from a work accident brought by the employee against her employer and its respective insurer, with a claim for the payment of an annual lifelong annuity; compensation for periods of temporary disability; trans port costs to the National Institute of Forensic Medicine (NIFM), and the respective interest for late payment, until full and effective payment has been completed. She alleged having suffered a work accident on her way to work in a shopping center, where she was employed as a cook, "which entailed having been grabbed by a man who attempted to take her shoulder bag. When the complainant cried for help, the said individual let go of her and shoved her to the ground. She did not manage to break her fall and was hurt in the incident. The injuries she suffered caused both her temporary and permanent disabilities and entailed the transport costs she has been paying, in order to undergo medical treatment and to travel to the NIFM and the court."
The insurance company contested the claim on, amongst other grounds, that the accident the employee suffered did not fall within the definition of a work accident and, as such, was not eligible for reparation, since the attempted robbery/assault to which she was subjected on her way from home to work was not tantamount to "a normal or foreseeable risk arising from this journey."
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The Court found in favor of the complainant, with the insurance company then lodging an appeal to the Porto Court of Appeal to rule on, among other matters, whether the incident in question could be defined as an in itinere work accident, since the injuries suffered by the victim were the result of a crime, which "is not a normal or even foreseeable risk in undertaking the journey to work."
Under the terms and effects of the Work Accidents Act (Law no. 98/2009, 4 September, hereunder WAA), accidents which occur "on the route to and from the place of work", are also considered to be work accidents, provided that they "occur on the routes normally used and during the period of time employees normally use to travel", specifically "between their habitual or occasional residence and the premises of their workplace".
Since the established facts demonstrate that at the time of the accident, the employee was travelling from her home to her workplace and the insurance company did not contest either the route taken nor the period of time used to travel as deviating away from habitual practice, the Court of Appeal concurred with the Court of First Instance that thi s incident fell within the definition of a work accident.
Its reasoning was that, pursuant to the WAA, employers are liable to provide reparations to the victim, without necessarily having been at fault, "rather, this obligation arises from social responsibility or the so-called theory of authority or economic risk. Accidents are encompassed by the Work Accidents Act whenever they occur when the employee undertakes an activity under someone else's authority, even if the accident is triggered by something which is completely unrelated to any specific risk involved in the occupation in question, regardless of the fact that in the overwhelming majority of cases, such a link clearly exists (...)"
Hence, according to the WAA, an accident falls within the scope a work accident without the need for a "specific risk" or "aggravated general risk" in the chain of events, which the Court found applicable not only to common accidents that occur in the workplace during working hours, but also to in itinere accidents. The only provision is that they occur on a certain route, namely the route which employees habitually uses to travel between their domicile and workplace, and vice-versa, and during normal journey times.
The Court of Appeal therefore ruled that the event in question attempted robbery does not have to be foreseeable nor probable, hence the incident falls within the scope of an in itinere work accident, and the employee is entitled to reparation.
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