Judicial challenge of the regularity and lawfulness of a dismissal
In this judgment the Court of Appeal of Évora ruled on the question of the non-fulfilment of the requirements set out in article 98-J of the Code of Labour Procedure, according to which, in the scope of a judicial challenge of the regularity and lawfulness of a dismissal, where the Parties have failed to reach an agreement in the hearing held for that purpose ("audiência de partes"), the employer is obliged to produce to the court the document explaining the reasons for the dismissal and to file the disciplinary proceedings or documents providing evidence of compliance with the relevant formal requirements, failing which the dismissal shall be considered unlawful and the employer ordered to reinstate the employee or to pay compensation in lieu of the reinstatement as well as the remuneration that the employee did not receive from the date of the dismissal until the decision becomes res judicata.
In the case under consideration, the employer failed to timely produce the document explaining the reasons for the dismissal and to present the disciplinary proceedings within fifteen days from the hearing, claiming, however, that the said proceedings were already partially included in the case file, namely, the report and the final decisions.
However, the Court considered that, although the disciplinary proceedings were already partially contained in the case’s file, such did not exempt the employer from its obligation to present it on the case file, since such obligation is clearly and unequivocally set out in the law.
Moreover, in a judicial challenge of the regularity and lawfulness of a dismissal, the burden to prove the facts that ground the dismissal and the regularity of the formal procedure initiated lies with the employer, and therefore, as the employer did not comply with this obligation, the court decided to dismiss the appeal and consequently, confirm the decision appealed against.
Blood alcohol level - Dismissal
In this judgment, the Court of Appeal of Porto addressed the question of the valuation of a document (hospital report containing the alcohol tests and blood alcohol level), proving that an employee had a certain blood alcohol level when he was accompanying the driver in a company car involved in an accident, and of the use of such document to prove that the employer was working under the influence of alcohol as basis of the alleged fair grounds for the dismissal.
In this case, it was not proved that the employee had provided the hospital record to the employer voluntarily, nor did that follow from the fact that according to the said hospital report the same was meant to be submitted to the insurance company in the scope of an accident at work procedure.
Indeed, if the hospital report was supposed to be submitted to the insurance company, it was the latter that had access to the data relating to the injuries as well as those relating to the employee’s hospitalisation, as the same were relevant to the transferee of the responsibility, but such data was of no interest to transferor of the responsibility, that is, the employer – unless in case of refusal by the insurance company, which would have to be mentioned in the proceedings and was not.
Therefore, considering that it was for the employer to prove the manner in which it had obtained the hospital report or, more specifically, to prove that it had been the employee that had simply given it to the employer and, because the employer failed to do so, the court held the evidence null and void considering that the employer had gained access to the same illegally.
The blood alcohol level shown on the blood test is information relating to the employee’s health condition, which the employer could never know, in accordance with articles 16, 17 and 19 of the Employment Code in conjunction with article 26 of the Portuguese Constitution.
Accordingly, the Court of Appeal of Porto considered that since the evidence was null and void, it was unsuitable to prove the fact in question, that is, that the employee was under the influence of alcohol and what the blood alcohol level was.
Since the behaviour invoked to demonstrate the fair grounds for dismissal was not proved, the court considered that there had been no breach of an employment duty or disciplinary offence that could attract the application of a penalty and therefore the dismissal was held to be unlawful.
Disciplinary offence – Telephone tapping – Relying on testimonial given in other proceedings
In this judgment the Court of Appeal of Porto ruled on the possibility of certain evidence, namely, telephone tapping and testimony given in the scope of criminal judicial proceedings, being offered as evidence in a judicial action to challenge the regularity and lawfulness of a dismissal.
In the case under consideration, the dismissed employee was charged in criminal judicial proceedings with the same facts grounded the just cause for dismissal claimed by the employer, and the latter requested that the certificate taken from the criminal judicial proceedings, reproducing telephone conversations held with and declarations of the above mentioned employee, as well as a CD with the testimony of some witnesses given in the hearing of the criminal judicial proceedings, be placed in the file of the labour procedure.
With regard to the question of the telephone tapping, the Court of Appeal of Porto considered that, in spite of the fact that the conversations had been transcribed and the criminal judicial proceedings were already at the public stage and therefore the evidence had become public and could be freely used, telephone tapping is different from documentary evidence and, from a constitutional point of view, it does not only need to be obtained in the scope of and with the guarantees and caution used in criminal proceedings, but must also be solely used for the purpose for which it was conceived – to prove the crime.
Accordingly, the Court did not authorise the certificate with the transcription of the telephone tapping to be placed in the case file.
With regard to presenting in the case file the declarations of the employee and a CD with the testimonial of certain witnesses given in the scope of the criminal judicial proceedings, the Court considered that, in accordance with article 522 of the Civil Procedure Code, the testimonials given in other proceedings to which the person against whom the testimonials are given in the present one is a party, can be presented in the case file, provided the guarantees of defence of the same party were safeguarded in the proceedings in which the testimonials were given.
The Court further considered that it is not necessary to prove that the party (that is, the employee) actually rebutted those testimonials, and the presentation of the testimonials in the case file is not conditional upon the decision made on those testimonials in the proceedings in which the same were given having become res judicata.