Judgment of the Court of Appeal of Gulmarles of 2015-04-30
Termination of employment contract- Trial Period
The Court of Appeal of Guimaraes was called upon to decide on the lawfulness of the termination of an employment contract, by the employer, during the trial period.
At issue was the hiring of an employee to meet the increase in the employer's construction activity in Chile.
On the employee's arrival at the airport in Chile, immigration and border control by the Chilean police did not allow his entry into the country to work, on the grounds that the visa presented was not valid.
Prevented from working, the employee returned to Portugal and his contract was terminated by the employer.
Given that the employee did not carry out any task for the employer, whether in Chile or in Portugal - having merely waited for the employer to assign him work -, the Court was called upon to decide whether the termination of the employment contract by the employer could be regarded as unlawful if it were understood that the trial period had not started since the employee had not actually carried out any construction work.
The Court explained that the legal framework for the trial periods allows both the employee and the employer to terminate the employment contract without invoking any reason.
For the Court, despite the employee not having carried out any work, the employment contract had taken effect, since the days on which the employee was travelling from Portugal to Chile were already included for the purpose of calculation of the trial period. Indeed, the calculation of the trial period also includes weekly rest days, bank holidays and holidays for which reason the days during which the employee was travelling to Chile must be considered part of the trial period.
The Court therefore judged unfounded the appeal, confirming the decision of the First Instance, which had considered that the termination of the employment contract was not unlawful. For the Court, the fact that the employee had shown technical competence to perform the duties for which he was hired did not determine the continuation of the employment contract for the effective work in Portugal, since there was no need for the employer to maintain his services for working in the country.
Judgment of the Court of Appeal of Porto of 2015-06-15
Accidents at work- Damages
The Porto Appeal Court was called upon to decide on the coverage of health expenses arising from an accident at work of an employee whose name was not included in the payroll statement for the months previous to the month in which the aforementioned accident occurred.
The question under analysis was which entity was responsible for paying the employee's damages following the accident at work: the employer or the insurance company.
The standard policy for employer liability insurance determined that the insurance contract covered employees working for the employer at the production plant identified in the specific terms and conditions, in accordance with the payroll statements regularly sent to the insurance company.
In the case in question, given that the employee's name was only included in the payroll statement for the month in which accident at work occurred - when he had already been working for the employer for some time -, the "non-existence" of the insurance meant that the accident incurred by the employee was not covered by the insurance contract and therefore the employer was liable for damages.