Article 394, paragraph 1 of the Labor Code provides that, in the event of just cause, the worker may immediately terminate the contract.
The statement of termination of the contract must be made in writing, with the brief indication of the facts that justify it, within 30 days of the knowledge of these facts (article 395, paragraph 1 of the Labor Code). Justify the resolution, the facts invoked in this communication (article 398, paragraph 3 of the Labor Code).
Article 394, paragraph 2 of the same law states, by way of example, some of the behaviors of the employer that constituted just cause of termination of the contract and that, under the terms of article 396, paragraphs 1 and 3 , Give the worker the right to compensation for pecuniary and non-property damage suffered.
These behaviors are pertinent to the present case, the fault of punctual payment of the remuneration, according to letter a) of said article 394.
Finally, paragraph 4 of article 394, tells us that just cause must be assessed in accordance with paragraph 3 of article 351, with the necessary adaptations, meaning that, in the assessment of the joust Case, the nature of the relationship between the parties and the other circumstances that are relevant.
Thus, in order for an employee to terminate his employment contract with a right to compensation, it is necessary that the conduct of the employer establishes guilty conduct that by its seriousness and consequences makes immediate and practically impossible the subsistence of the employment relationship.
Jurisprudence and the dominant doctrine have understood that it is in the light of this same legal concept of just cause that the behavior of the employing entity relied on by the employee for the termination of the contract with the right to compensation must be examined.
And, therefore, it is not a mere conflict between the parties, or even any offense from one to the other, which may constitute just cause of immediate termination of the contract of employment entitled to compensation.
It is necessary that this conflict constitutes one of the legally integrable situations within the scope of the just cause of resolution and as well as the worker, given the seriousness and consequences of that situation, it is not required that he remain linked to the company for a longer time.
With regard to this matter, the Judgment of the Court of Appeal of Lisbon of 02/03/2011, In www.dgsi.pt, should state that:
“1. The employee may terminate the contract of employment without notice and with a right to compensation if there is behavior attributable to the employer as guilt and that this behavior, by its seriousness and consequences, Makes the maintenance of the employment relationship unenforceable.
- After being aware of the non-payment of the punctual payment, the employee can immediately resolve (or within 30 days of the knowledge of the fault) his contract with just cause and claim the right to compensation corresponding to his seniority in the company, In this case plead and demonstrate the assumptions of just cause of the termination of the contract referred to above.
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In the case of a continuous failure (payment of the remuneration) that is maintained for a period equal to or greater than 60 days, the employee may terminate the contract with a right to compensation, presuming, in this case, the existence of Just cause.
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Since the payment of a small fraction relating to two payments is only in default and it has been shown that that failure to pay was due to the company’s economic and financial difficulties, which were not due to its fault, that presumption was rejected. “
In addition, Júlio Manuel Vieira Gomes, In “Labor Law”, Volume I, “Individual Work Relations”, Coimbra Editora, March 2007, pages 1038 et seq., With special emphasis on pages 1049 to 1051, states the following:
“However, it will be pointed out that the Labor Code has in Article 364 (2) (now Art. 325 (2)) excluded the possibility for the worker to immediately terminate the contract, Failure to pay the punctual payment, in principle requires that the non-payment be extended for sixty days, so that such a resolution can occur. This would, moreover, be corroborated by the fact that the only situation in which the employee expressly agrees to terminate the contract within sixty days would be that in which “the employer, at the employee’s request, declares in writing the provision for non-payment , Until the expiry of that period, of the amount of the outstanding remuneration. ”
Hence the tendency of some doctrine – especially Pedro Romano Martinez – to make a restrictive reading of the current article 394 of the Labor Code.
For Pedro Romano Martinez, the non-payment of the remuneration by the employer does not cause an injury of interests of the worker that immediately makes impossible the subsistence of the employment relationship.
Moreover, in the opinion of the same author, such impossibility “normally does not occur in the moment following the non-payment of the remuneration”.
That is to say, the worker can only terminate the contract of employment without notice and with the right to compensation if there is conduct that is attributable to the employer as fault and that this behavior, By its seriousness and consequences, renders the maintenance of the employment relationship unenforceable.
We must, however, bear in mind in this consideration that while the employer has interim sanctions to react to a particular offense or to a particular failure of the employee, the employee, if injured in his rights, for any breach of the employer, has no Alternative to termination (or performs the contract or rescind).
In this context, it can be said that the rigor with which the just cause invoked by the employer is appraised can not be the same with which the just cause is appraised when invoked by the worker.
Hence, there are those who reject the thesis that the legal notion of just cause of dismissal by the employer and the notion of just cause of termination of the contract by the employee must comply with the same criteria of assessment.
Although the two concepts of just cause (that invoked by the employer and the one invoked by the worker) should not be considered absolutely symmetrical or identical, although the worker does not have the alternative forms of reaction available to the employer, If any fault or any fault imputable to the employer, as a fault, for the employee to be able to resolve with just cause his contract of employment, with right to compensation.
Photo credits: Christopher Campbell in Unsplash
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