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Labor Indirect termination of the contract is a common alternative for workers seeking to reverse dismissal requests based on serious misconduct by employers. According to the legal metric company Data Lawyer Insights, in around , actions in the Labor Court addressed indirect termination, while this year there are almost , cases. However, recent decisions have considered the difficulties imposed on companies by the Covid- crisis, ruling out indirect termination even in cases of late payments. Valdecir GalorSMCS Dismissal requests can be reversed if the employer commits serious misconduct Valdecir GalorSMCS The Regional Labor Court of the nd Region, for example, denied indirect termination to a worker who received wages late for three months last year, in the midst of the health crisis. For judge-rapporteur Fernanda Oliva Cobra Valdívia, the delay of a few days in a few months cannot be considered a very serious misconduct on the part of the employer. At the end of last month, the TRT of the th Region adopted a similar understanding to reject the indirect termination of a hospital employee. Even with delays in wages and no FGTS payment, judge Rita Albuquerque considered that there would be no bad faith on the part of the employer, due to the atypical situation of the Covid- crisis: "In the sub judice case , the company's field of activity was noticeably affected with the suspension of elective surgeries", he noted.
In the first instance, it is no Greece Phone Number different. The nd Labor Court of Chapecó (SC), for example, rejected a request to convert the layoff to indirect termination. The companies complained about even acknowledged the occurrence of occasional delays in collecting FGTS, also due to the health crisis. But judge Marcelo Tandler Paes Cordeiro understood that there was no substantial and repeated salary delay. Even when indirect termination is considered valid, the discussion about the employer's financial difficulties are taken into account. The nd Labor Court of Betim (MG), for example, considered , in a judgment this May, that the delays in employees' salaries were an isolated measure and due to force majeure: "It should be noted that at no time did the company pass on the risk of its activity to the complainant, on the contrary, the defendant is trying at all costs to maintain active jobs and survive this crisis", pointed out judge Osmar Rodrigues Brandão. The request for indirect termination was only accepted in the end due to non-compliance with preventive measures for an accident at work. Jurisprudence and obligations Ricardo Calcini , professor of Labor Law at Faculdades Metropolitanas Unidas (FMU) and columnist at ConJur , recalls that, before the Covid- crisis, the Superior Labor Court had been defending termination in cases of non-compliance with contractual obligations such as overtime, additional wages, salary differences, FGTS, etc.
Disclosure internet Employers have been facing financial difficulties that delay payments Disclosure internet He says that "with the pandemic, the Judiciary had to reinterpret some positions that had previously been established in the field of jurisprudence, especially to meet this moment of undeniable legal exceptionality." But he sees no obstacles to indirect termination being revitalized by labor jurisprudence. "Of course, to avoid abuses, it is not enough for the company to simply allege the still current state of public calamity so that it receives permission from the Judiciary to fail to comply with labor legislation. It must, first of all, prove the real conditions of financial adversity , so as not to be held responsible for the serious misconduct provided for in labor legislation", he warns. Lawyer Rodrigo Marques , coordinator of the labor center at Nelson Wilians Advogados, highlights that the analysis of indirect termination can take into account the historical moment experienced by society and even the period of delay in payments. "It must be robustly proven in the labor claim that the crisis resulting from the pandemic affected business activity, and the company cannot rely on mere allegations, as well as that the delay in salary payment occurred for a short period of time, also proving that the defendant paid the salary in full", he points out. Carlos Eduardo Dantas Costa , specialist in Labor Law and partner at Peixoto & Cury Advogados, also sees the need to analyze such issues with less rigor. "This does not mean that companies can, indiscriminately, stop paying salaries. On the contrary.
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