Judgment of the Constitutional Court No. 172/2014
Accidents at work and occupational illnesses compensation scheme and accidents at work fund

The representative of the Public Prosecutor before the Constitutional Court requested the review of the constitutionality of the part of the rule contained in Article 75(2) of Law No. 98/2009 of 4 September, which prevents the partial redemption of annual life- long pensions for invalidity of less than 30%, which are not mandatorily redeemable pursuant to No. 1 of the same provision, on account of their value being more than six times the minimum guaranteed monthly wage, in force on the day following the discharge date, even when the injured employee so requests.

The question under consideration concerned the constitutional conformity of the prohibition of partial optional redemption of pensions payable for permanent partial incapacity not very high (less than 30%) that cannot be considered of a small amount (on account of their amount being more than six times the  minimum  guaranteed monthly wage, in force on the day following the discharge date).

According to the Court, the reasons underlying the conditions that restrict the possibility of partial redemption of life-long pensions at the request of the injured employee pursuant to Article 75(2) of Law No. 98/2009, are less urgent in the case of partial permanent invalidity of less than 30% than in those cases in which the invalidity is 30% or higher, no justification being given for allowing the partial optional redemption in the second case and for its indirect legal prohibition in the first case .

This difference in treatment raises a problem in terms of understandabilit y, reasonableness or non arbitrariness between the two types of situation , which difference may translate into unequal and discriminatory treatment of subjective situations that deserve the same protection.

The Court concluded that, other than in the case of mandatorily redeemable pension pursuant to Article 75(1) of Law No. 98/2009, and safeguarding the respect of the amounts provided for in paragraph a) of No. 2 of the same provision, there are no reasonable reasons to allow the partial redemption only of pensions designed to compensate a permanent partial incapacity of 30% of more .

Accordingly, the Constitutional Court held unconstitutional, with general binding force, the part of the rule contained in Article 75(2) of Law No. 98/2009 that prevents the partial redemption of annual life-long pensions for invalidity of less than 30%, which are not mandatorily redeemable pursuant to No. 1 of the same provision on account of their value being more than six times the minimum guaranteed monthly wage, in force on the day following the discharge date, even when the injured employee so requests, on grounds of the breach of the principle of equality, enshrined in Article 13(1) of the Portuguese Constitution.

Judgment of the Constitutional Court No. 173/2014
Accidents at work and occupational illnesses compensation scheme and accidents at work fund

The representative of the Public Prosecutor before the Constitutional Court also requested the review of the constitutionality of the part of the rule contained in Article 82(2) of Law 98/2009, of 4 September, together with Article 1(1)(c)(i) of Decree-Law No. 142/99, of 30 April, preventing the update of pensions for invalidity of less than 30% that are non mandatorily redeemable pursuant to Article 75(1) of said L aw 98/2009, on account of their being more than six times the minimum guaranteed monthly wage, in force on the day following the discharge date.

The Constitutional Court also considered that the failure  to update  pensions of an amount of six times the minimum guaranteed monthly wage or more in force on the day following the discharge date of the injured employee – who, as a result of the accident, is left with a permanent partial incapacity of less than 30% - breaches the injured employee’s right to fair compensation, enshrined in Article 59(1)(f) of the Portuguese Constitution (on the assistance to and fair compensation of victims of accidents at work or occupational illnesses), since it does not protect him against the amount of the pension not being suited to its restitutionary and compensatory function .

Accordingly, the Constitutional Court declared the above-mentioned rule unconstitutional, with general binding force.

Judgment of the Court of Appeal of Porto of 2014-02-24
Non compliance of the duty to reinstate the employee – Amount of compensation

In this judgment, the Court of Appeal of Porto was requested to analyse the amount of compensation established due to the non-compliance with the duty to reinstate the employee. The Court of first instance had established compensation in the amount of € 2,000.00, plus interest for late payment at the legal rate from the moment the matter becomes res judicata until full payment.

The employee brought an enforcement action against the em ployer in order to be reinstated, in accordance with the final judgment that concluded that the dismissal was unlawful and ordered the employee to be reinstated.

In the above-mentioned action, the employee claimed, in brief, that as a result of the behaviour of the employer, which continued to fail to give the employee the same conditions to perform the duties he had before the dismissal, he  sustained  moral damage such as humiliation, isolation, demotivation and psychological strain.

Indeed, prior to the dismissal, the activity of the employee covered all the sections of the employer, while, after the reinstatement, it covered only the polishing section ; before he shared an office with other co-employees where he worked with a computer, and had a printer and a photocopier, while, after being reinstated, he worked at the polishing section, with noise and aluminium dust and had only pen and paper to handwrite his reports.

Moreover, prior to the dismissal, the employee performed his duties as part of the Technical Management, in the Engineering and Production Sector, while, after being reinstated, he performed  his duties as part of the Production Management, at the mechanic shaping department, in the polishing section.

It should be noted that the Chairman of the Board of Directors addressed the employee several times in a loud voice, demanding that he reported to him, while banging his hand on the desk, his voice and the banging on the desk being heard by several employees that peeked in to see what was going on.

Also: in February 2009 the employer paid the salary to all its employees, with the exception of the plaintiff.

As a result of these behaviours, the employee was admitted into a psychiatric hospital for approximately one month, on full board, and was followed by a psychiatrist for over seven months after being discharged.

After analysing the set-up of the case, the Court of Appeal of Porto concluded that the facts proven revealed a deliberate process  of marginalisation and exclusion of  the employee, for reasons that were never objectively established during the action. The Court also considered that the behaviour adopted was exceedingly humiliating, constituted an affront to dignity, professional reputation, social consideration and esteem that the employee had in the firm. The Court also considered that the employee had been the victim of persecutory and marginalising behaviour in  respect  of  the salaries that had not been paid to him, which had also affected his livelihood .

Therefore the Court considered the behaviour of the employer unlawful and  very serious, and the moral damages serious, and decided to grant compensation for such damages in the amount of € 15,000.00.