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What is Labour Termination?
The labour rescission is a calculation performed as from the official end of the contract between the employee and the company that maintained the relationship .
It is a calculation that must be made with a lot of attention. After all, it is the financial operation responsible for all the values that the worker must receive as a guarantee when the employment relationship ends. And it demands obligations from both sides.
With the Labor Reform, sanctioned in 2017, there were some changes in the way this calculation is performed. To check out what the changes are, just keep reading.
What are the types of termination of employment contract?
Under the Consolidation of Labor Laws (CLT) regime, there are some types of termination of employment contract. For each of them, a different calculation is performed.
To better understand how it works in practice, it is necessary to specify how these terminations work within a company. See below:
1 – Dismissal without just cause:
This type of dismissal happens when the employer decides to discharge the employee of his own free will. It usually occurs when the company is no longer interested in the type of service provided by the employee.
As there is no specific reason for this breach of contract, the employee is guaranteed more rights than in other types of dismissal.
In this model of termination of employment, the company is not obliged to state the reason why you are leaving. But they must give noticewhich is a communication sent to the employee 30 days in advance.
See below what are the rights of dismissal without just cause:
- Salary for days worked;
- Proportional holidays;
- Proportional thirteenth;
- Indemnified notice;
- Withdrawal of FGTS;
- FGTS 40% fine
- Unemployment insurance;
2 – Dismissal for just cause:
This type of leave of absence occurs when the employee commits a very serious fault within his/her work environment.
These are considered serious misconduct:
- Moral and sexual harassment;
- Drunkenness;
- Criminal conviction;
- Mark another employee’s timecard;
- Acts of indiscipline and insubordination;
- Theft;
- Abandonment of employment;
- Breach of company confidential matters
- Among other acts of improbity;
In this scenario, the rights of the employee dismissed for just cause are: to receive the salary corresponding to the days worked in that month and accrued holiday.
3 – Request for resignation:
When the employee himself expresses his interest in leaving the company, even if this is not the company’s wish.
In this case, the difference between dismissal without just cause and resignation is that the employee loses some rights.
Among them are: prior notice (the employee may request the waiver of prior notice, but if he or she does it, he or she receives this right); 40% FGTS indemnity; impossibility to withdraw FGTS and unemployment insurance.
4 – Consensual dismissal:
It occurs when both the employer and the employee decide together to terminate the employment relationship.
This was already a very common practice in companies throughout Brazil, but it was done illegally. Now, with the Labour Reform, it is covered by law.
Besides the severance pay to which the worker would be entitled in case of resignation, he receives half of the value of the notice, 20% of the fine of the Guarantee Fund and the possibility of using up to 80% of the FGTS balance.
On the other hand, the employee loses the right to receive unemployment insurance.
5 – Indirect termination:
This type of dismissal occurs when the company employee realizes that his or her employer has committed some serious flaw that may prevent the renewal of the employment relationship.
It works like a kind of dismissal for just cause, but in reverse. Only in this sense, the serious fault is committed by the organisation.
This type of dismissal is provided for in the CLT, but the employee needs to present real evidence that this happened, which is compatible with the complaint.
In this case, if proven, the employee guarantees all the rights that a dismissal without just cause gives. But the employee still has the chance to sue for moral damages, for example.
How to calculate the severance pay?
Check out a practical example of calculation of employment termination of a dismissal without just cause, in the case of an employee with the following salary pattern:
– He receives a salary of R$ 1,200;
– He is not entitled to additional pay or overtime.
Salary Balance:
Salary (R$1,200) / 30 days = R$ 40 (Salary for the day)
R$ 40 x 28 (number of days worked in the month of termination) = R$ 1,120 (Salary balance)
Holidays Due:
Salary (R$ 1,200) + 1/3 of R$ 1,200 (R$ 400) = R$ 1,600 (accrued holiday)
Proportional Holidays:
Salary (R$ 1,200) / 12 = R$ 100 (Monthly Amount)
R$ 100 x 6 (number of months worked in the acquisition period) = R$ 600.00
R$ 600 + 1/3 of R$ 600 (R$ 200) = R$ 800 (Proportional Vacation)
Proportional Christmas Bonus:
Salary (R$ 1,200) / 12 = R$ 100 (Monthly value)
R$ 100 x 5 (number of months worked in the year) = R$ 500 (proportional Christmas bonus)
Prior Notice:
It is equal to the value of 1 month’s salary, therefore, R$1,200.
Severance Premium ReserveFund (FGTS) and 40% fine
The monthly FGTS contribution is equivalent to 8% of the employee’s remuneration.
Considering that the employee’s salary is R$ 1,200, the monthly contribution should be:
R$ 1,200 (salary) x 8% = R$ 96
Let us suppose that the employer had deposited R$960 of FGTS for the employee until the date of termination. Therefore, the employee will receive:
R$960 (FGTS balance) + 40% of R$960 (R$384) = R$1,344
Total Value of the Labour Termination:
Salary balance: R$1,120
Holidays due: R$1,600
Vacation pay: R$800
Proportional Christmas bonus: R$500
Prior notice: R$1,200
FGTS balance and 40% fine: R$1,344
TOTAL: R$6.564
Remuneration supplements
The complement of remuneration is a detail that many entrepreneurs forget when calculating the severance pay. However, it weighs directly on the result.
If the employee receives additional remuneration, such bonuses must also be taken into consideration. Among the most common ones we can mention the night and health hazard premiums.
But beware! Only the bonuses of the last 12 months and that are recurrent must be accounted. Let us say that in the last month the employee won a prize of R$200. Then, it will not be counted in the rescission calculation, since it was only granted in the last month.
How many days does the company have to pay the termination?
According to article 466, item 6 of the Consolidation of Labor Laws, the deadline for payment of termination payments is 10 days after the last day of work.
What should I do if the company does not pay my notice on time?
If you do not meet the deadline set by law, you can contact the Public Prosecutor’s Office or the union in your category. The company will be obliged to pay a fine for each day of delay.
What about the termination of the work contract in the pandemic?
In situations like this, the employer must follow the same rules of termination of employment contract. Therefore, there is no differentiation in the Labour Law during the pandemic.
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