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January 2017
LABOUR LAW
Portugal
DISCIPLINARY INFRINGEMENT IN THE BANKING SECTOR - LIMITATION PERIOD OF THE EMPLOYER’S DISCIPLINARY POWER
Porto Court of Appeal decision dated 5.12.2016 (Nelson Fernandes); proceedings no. 3928/15.0T8MTS.P1
Pursuant to the Portuguese Labour Code, the employer’s sanctioning power must be exercised no later than one year as from the occurrence of the infringement. Where the infringement is purported to constitute a criminal offence, then the applicable limitation period is extended up to that provided under criminal law.
In this decision, the Porto Court of Appeal analysed the case of a bank’s employee who was dismissed due to their use of a photomontage of a client’s signature on an insurance underwriting form in April 2012.
Having noted the debit of the monthly insurance premium from his bank account, the client filed a complaint with the bank in 2015, which promptly returned the amount at stake, plus interest.
The accusation of misconduct was served to the employee on 31 March 2015.
The Court of First Instance ruled that the dismissal was unlawful, since at the time the accusation was served the sanctioning power had already expired under the statute of limitation.
The employer resorted to the Court of Appeal, which confirmed the decision of the Court of First Instance on the grounds that despite the fact that the debit of the premium occurred on a monthly basis until 2015, the employee’s infringement was instantaneous and took place in 2012.
The Court of Appeal held that the applicable limitation period was one year and not the longer one provided by criminal law, because the employer had not been able to prove that the employee’s conduct could be deemed entirely as forgery (notably because she had not acted with intent as required by criminal law).
This decision is not in line with previous decisions, notably those from the Supreme Court of Justice, and evidences how difficult it may be for larger businesses, which frequently have multiple workplaces, to detect infringements and take sanctioning action in a timely manner.
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SOCIAL CONSULTATION - MEDIUM-TERM COMMITMENTS
Social Consultation Permanent Committee - tripartite medium-term agreement
On 17 January 2017, the Government and its social partners entered into a tripartite medium-term agreement.
Among other matters, the parties agreed on (i) raising the minimum monthly salary to EUR 557 in 2017, (ii) reducing the social security contributions borne by the employers by 1.25% until 31 January 2018, with regard to employees who are hired on a full-time basis and earn an average salary in the range of EUR 530 to EUR 557 (or the corresponding amount pro rata regarding part-time employees) between October and December 2016; and (iii) waiving the parties’ right to terminate a collective bargaining agreement for 18 months as from January 2017.
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“MEDIDA CONTRATO-EMPREGO” – MONETARY SUPPORT FOR HIRING UNEMPLOYED PERSONS
Government Order no. 34/2017 of 16 January (published in Portuguese Official Gazette no. 13, Series I, of 18 January)
This Order establishes the so-called “medida contrato-emprego”, which is a programme aimed at supporting companies who hire unemployed workers enrolled with the IEFP (the Employment Agency) for at least six consecutive months, or who are, for instance, single parents, disabled, or married to a spouse who is also unemployed.
The financial allowance to be provided to employers within this programme ranges from EUR 1,263.96 to EUR 3,791.88 (depending on whether the employment agreement is a fixed-term or an open-ended agreement). The allowance may be increased in certain circumstances set out in the Order.
Among other obligations, the employers who apply for this programme are required to provide professional training to the intended employees.
The Order entered into force on 19 January 2017.
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SOCIAL SUPPORT INDEX – UPDATE FOR 2017
Government Order no. 3/2017 of 28 December (published in Official Gazette no. 2, Series I, of 3 January)
This order updated the Social Support Index (Indexante dos Apoios Sociais - IAS) to EUR 421.32 for 2017. The IAS is a relevant factor for the calculation of several social security allowances, such as unemployment benefits.
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REDUCTION OF THE SOCIAL SECURITY CONTRIBUTIONS BORNE BY EMPLOYERS
Decree-Law no. 11-A/2017 of 17 January and Parliamentary Resolution no. 11/2017, of 25 January (published in Official Gazette no. 20, Series I, of 27 January)
This piece of legislation sets out a 1.25%-reduction of the social security contributions borne by employers with regard to employees who earned an average salary in the range of EUR 530 to EUR 557 (or the corresponding amount pro rata regarding part-time employees) from October to December 2016.
This Decree-Law was, however, overruled by Parliamentary Resolution no. 11/2017.
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La información contenida en esta circular es de carácter general y no constituye asesoramiento jurídico
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DISCIPLINARY INFRINGEMENT IN THE BANKING SECTOR - LIMITATION PERIOD OF THE EMPLOYER’S DISCIPLINARY POWER