Observation (CEACR) - adoptée 2012, publiée 102ème session CIT (2013)

Convention (n° 158) sur le licenciement, 1982 - Portugal (Ratification: 1995)

The Committee notes the Government’s report received in October 2011 for the period ending May 2011, including replies to its 2006 observation. The Committee also notes the observations received in October 2011 from the General Workers’ Union (UGT) and the General Confederation of Portuguese Workers – National Inter-Union (CGTP–IN). The Committee notes that new provisions regulating the termination of employment of public service employees were introduced in the framework of the 2008 legislative reform of the public sector with a view to align the civil service and private sector employment regimes. It also notes that a new Labour Code has been adopted by Act No. 7/2009 of 12 February 2009. Moreover, the 2009 amendments to the Code of Labour Procedure (Decree Law No. 480/99) introduced a new regulation of the judicial procedure applicable to claims for unfair dismissal. The Committee notes with interest that the provisions of the 2009 Labour Code have reinforced the grounds that constitute invalid reasons for termination. Section 381(d) of the Labour Code provides that the dismissal is invalid when the opinion of the Commission for Equality in Labour and Employment has not been sought before dismissing any pregnant worker, any worker who has recently given birth or who is breastfeeding, or any worker during initial parental leave (Article 5 of the Convention). The Committee observes the CGTP–IN’s indication that the Constitutional Court decision No. 338/2010 of September 2010 declared section 356(1) of the 2009 Labour Code (which provided that giving evidence during the procedure of dismissal was discretionary) as unconstitutional, on the grounds of violating the principles of the right to defence and protection of employment security enshrined in the National Constitution. The Committee notes that in the context of structural adjustment measures adopted since March 2011, the Government undertook reforms in the employment protection system, including amendments to the regulation of individual dismissals and the reduction of severance payments. The Committee invites the Government to include in its next report an evaluation of the impact of the reduction of termination benefits by the legislative reforms of 2011 in terms of maintaining and creating employment. In this respect, the Committee invites the Government to provide updated information on the intervention of the labour authorities in cases of collective dismissals (Part V of the report form). The Government indicates that following the monitoring activities of the Working Conditions Authority, 178 infringements of the requirements for collective dismissals were sanctioned in 2010, which involved 8,223 workers in 98 businesses. In the same year, 197 infringements regarding dismissal for the abolition of the job position were sanctioned, which involved 4,065 workers in 162 businesses. The Committee invites the Government to continue to provide information on the activities of the Working Conditions Authority and the labour inspectorate on the matters covered by the Convention.

Article 2(3) of the Convention. Adequate safeguards in case of recourse to contracts of employment for a specified period. In reply to previous comments, the Government supplied statistical information on the rate of fixed-term employment contracts concluded between 2006 and 2009 (around 29 per cent in 2009, approximately 830,000 contracts). The CGTP–IN indicates that the 2009 Labour Code has expanded the cases in which a fixed-term employment contract may be stipulated, such as through providing the possibility of very short-term contracts for seasonal agricultural activities and touristic events (section 142 of the 2009 Labour Code). The Government indicates that, according to the 2009 Labour Code, fixed-term employment contracts may be renewed up to three times and their total duration may not exceed three years (section 148 of the Labour Code). Section 393 of the 2009 Labour Code provides that where the dismissal of a worker employed under a fixed-term contract is declared invalid, the employer shall be condemned to reinstate the worker (if the contract expires after a definitive court decision) and compensate her/him for patrimonial and non-patrimonial damages. The Committee invites the Government to provide information on the manner in which the protection provided by the Convention is concretely ensured to workers who have concluded an employment contract for a specified period and the number of workers affected by these measures. Please provide copies of court decisions by which tribunals have dealt with this issue.

Article 2(5). Micro-enterprises. In reply to the Committee’s previous comments, the Government indicates that the procedure for dismissal in micro enterprises is regulated by the same provisions applicable to other enterprises except for the intervention of work councils in the procedure of dismissal (section 358 of the 2009 Labour Code). The Committee notes that as a general rule, the 2009 Labour Code provides that when termination is unjustified, the court shall automatically order the reinstatement of the worker. It is then up to the worker who may opt for compensation in lieu of reinstatement (sections 389(1) and 391 of the Labour Code). As an exception to this rule, where the dismissal concerns workers in micro-enterprises or workers holding managerial positions, the employer may request the court to exclude reinstatement of those workers based on circumstances, which would render the worker’s return seriously prejudicial and disruptive to the enterprise’s functioning. When reinstatement is excluded, the worker has the right to compensation (section 392 of the 2009 Labour Code). The Committee invites the Government to continue to provide information on the application of the Convention to micro-enterprises.

Article 8. Time limit for the appeal procedure. The CGTP–IN indicates that the time limit under the 2009 Labour Code for bringing a claim for unfair dismissal before the court, i.e. 60 days compared to one year before the 2009 reform, is too short as it does not allow workers to submit the dispute to labour mediation. The CGTP–IN also indicates that the amendments to the Code of Labour Procedure make dismissal less expensive because the State is responsible for paying interim wages whenever the legal procedure lasts for more than a year (section 98-N of the Code of Labour Procedure). In the CGTP–IN’s view, this measure is likely to promote dismissals, removing any reservation the employer might have against being involved in a lawsuit. The Committee requests the Government to provide information on the practical application of the provisions of the Code of Labour Procedure regulating claims for unfair dismissal. It also requests the Government to include updated information on the outcome of appeals against unjustified termination, the average time for an appeal to be decided and the roles of mediation and arbitration in resolving issues related to the Convention.

Burden of proof. The UGT indicates that under the 2009 Labour Code, the worker’s guarantees in the judicial procedure were strengthened to the extent that the worker may challenge dismissal through filing an application and submitting it to court. The employer has to prove that the termination was lawful (section 387(2) of the 2009 Labour Code and sections 98-C and 98-D of the Code of Labour Procedure). The Committee also notes that according to section 387(4) of the 2009 Labour Code, the court shall decide on the existence of valid reasons for dismissal alleged by the employer. The Committee requests the Government to provide information on the effect given to Article 8(3) of the Convention.

Article 10. Compensation. In the CGTP–IN’s view, the relaxed procedural requirements introduced by the 2009 Labour Code and the decrease in sanctions for these requirements, are likely to undermine the guarantee of employment security. The CGTP–IN further indicates that the 2009 Labour Code introduced changes regarding the effects of unlawful dismissal to the extent that dismissals are declared invalid only when the irregularities are not purely procedural. Accordingly, compensation for dismissed workers was reduced. Pursuant to section 389(2) of the 2009 Labour Code, when the court decides that there are valid reasons for dismissal but finds procedural irregularities, the dismissed worker shall only have the right to half the compensation in lieu of reinstatement she/he would have in the case of unjust dismissal. Taking into account the concerns raised by the CGTP–IN, the Committee invites the Government to continue to provide information on this issue.

[The Government is asked to reply in detail to the present comments in 2014.]