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Understand how the notice, which leads the proceedings in the labor court, works |  Competitions and recruitment

Understand how the notice, which leads the proceedings in the labor court, works | Competitions and recruitment

The balance sheet of the Supreme Labor Court (TST) shows that Advance notice is the subject with the largest number of new actions up to the first instance of the Labor Court.

Prior notice is given when the employment contract is terminated under the CLT system – when the company dismisses the employee and the employee takes the initiative to leave. An employee may be required to give 30 days’ notice of employment for the company prior to termination or be compensated for the period.

Advance notice has been at the top of the job claims rankings at least since 2016, according to balance of st 1. However, on the TST website, inventory numbers are only available from 2019 onwards. See below for the cases that led to the largest number of labor lawsuits in this period.

Topics in the top ranking of the first degree of the Labor Court – Photo: G1 Economics

According to Renato Falchet, partner attorney at Falchet e Marques Sociedade de Advogados, advance notice is usually required in most business suits. Among the reasons for the great elimination:

  • Lawyers often include advance notice within termination indemnity, even without a worker’s entitlement;
  • Most companies do not respect the relative advance notice, only paying 30 days;
  • It is common for the company to make the following agreement with the employee: he/she withdraws the FGTS, but agrees to return 40% of the fine. In this case, the company does not pay a notice. This is a violation, because this type of agreement is not provided for in the law of laws and regulations.

See below for questions about advance notice, according to Falchett.

What is advance notice?

It is the communication between an employee and an employer upon termination of an employment relationship. This means that the employee resigns or is fired. Advance notice can be made or compensated. The employee’s labor card must be canceled after the last day of the notice.

What does a notice do?

The employee works in the notice period and is paid for this period. In this case, the time will be different. A worker can get two hours less in the daily working hours or work the normal hours and not work in the last week of notice. Either way, the pay is full. In other words, the employer cannot deduct the two hours or seven days he did not work from the notice amount.

If the company does not grant these differentiated working hours, which are intended to allow the employee to search for a new job, the company is obligated to issue a new notice.

Termination indemnities, such as salary credit, thirteenth proportional salary, relative and late leave and 40% of the FGTS penalty, are paid on the first business day after the notice and notice of termination of the employment contract expire.

If the employee gets a new job during this period, he will be exempted from all notices. If he resigns, he has deducted the days he did not work. If as a result of dismissal by the employer, the employee is paid only for working days.

What is advance notice compensation?

The notice period does not work, and the employee receives a wage equal to the last salary, including bonuses, commissions, overtime and night hours, which are unhealthy and dangerous. The contract is terminated immediately, and termination payments are made 10 days after the notice of termination.

What is the notice period?

Duration varies according to the time of work in the company. The minimum is 30 days for contracts of up to one year, and the maximum is 90 days for those over the age of 20 with the same company. See the table below:

Notice Duration – Image: Economy G1

Thus, for those who have worked with the company for more than one year, another three days are added to each working year, up to a maximum of 20 working years.

  • If the employee resigns, corresponds to 30 days notice. In this case the employer can release him from work, but he does not pay for the term.
  • If the employee is fired, the employer must keep the employment contract and pay the period commensurate with that for which the employee worked, according to the above schedule. This is called relative advance notice. The employer can choose whether to work with the 30-day notice or be compensated. In the case of relative period, it can only be compensated.

in another meaning, Paying relative advance notice is only valid when an employee is dismissed without a valid reason. If the employee resigns, he will not receive a relative notice, but only 30 days.

What if the employee does not comply with the notice?

In the event that the employee resigns and does not comply with the notification, the employer can deduct the amounts corresponding to the period. In the event of dismissal without valid reason, if the employer releases the employee from compliance, the amount of advance notice will have to be paid.

Although the employer may release the employee on prior notice, the employee may never release the employer, as this is an inalienable right, unless the reason for dismissal is a new job, according to precedent No. 276 of the TST: “Right to notice A non-waiverable advance by the employee. A request for a waiver of compliance does not excuse the employer from paying the amount in question, unless there is evidence that the service provider has obtained a new job.”

What if the company does not comply with the notice?

The worker can contact the labor court to collect the amounts due from the prior warning. There is also a penalty of one salary to be paid to the employee if the action is won.

When is there no advance notice?

There is no prior notice when an employee is dismissed for some reason. Any rights upon termination must be paid on the day following the termination of the employment contract. Separation for good cause occurs when a worker commits gross misconduct, such as theft, assault, or drunkenness.

An employer may also dismiss an employee for good cause during notice in the event of gross misconduct, except for job abandonment, in accordance with TST Precedent No. 73: “A just cause, other than job abandonment, during the period of notice given by the employer, withdraws from the employee any right to indemnification of termination of service of a compensatory nature.”

Does the advance notice include the length of service?

Yes, prior notice provided by the employer, whether employed or compensated, its duration will be combined with the length of service for all legal purposes, including salary adjustment, vacation, thirteenth salary, compensation and also for the retirement period.

How is advance notice made when dismissal is by mutual agreement?

Labor reform brought the possibility of a new type of agreement between the company and the employer, which is termination by mutual agreement. In this case, the employee receives half of the previously compensated notice, i.e. 15 days, plus 80% of the FGTS balance and half the fine on the balance of the guarantee fund (20%). Separation payments are usually paid, but the worker is not entitled to unemployment insurance.

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