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New dispensation modality introduced by the Labor Reform

25 de March de 2019

Prior to the Labor Reform, the relationship between employee and employer was terminated unilaterally, with dismissal with or without just cause, or could be terminated at the request of the employee. With the changes in the new CLT the Termination came into common agreement, explained by art. 484-A which states that the employment contract may be terminated by agreement between the employee and the employer.

If prior to the Labor Reform the employee who resigned could not move the balance of his FGTS, did not get compensation, nor the unemployment insurance and had to comply with the notice to not be deducted from the severance funds, the labor agreement guaranteed by the new law passes to have another scenario.

The labor contract may be terminated with payment of half of the notice if indemnified and half of the fine of 40% on the FGTS balance, that is, a 20% indemnity.

The new provision also establishes that in the event of termination of the agreement by agreement between the company and the employee, it will be allowed to move the employee’s linked account in the FGTS, limited to 80% of the value of the deposits in the linked account.

The Joint Labor Termination also says that the value of the indemnified notice will be paid to the employee for 50%. According to art. 484-A, termination by agreement follows the same rule as when it occurs when the employee resigns. That is, in the new form of contractual termination the worker continues without being entitled to unemployment insurance.

Thus, in summary, the new modality of Labor Termination establishes to the employee the following labor sums:

  1. Half of the notice (15 days), if indemnified;
  2. Half of the fine on the FGTS balance (20%) set forth in paragraph 1, art. 18, of Law 8.036 / 1990;
  3. The other labor sums (salary balance, vacation + 1/3, 13th salary, etc.) in full;
  4. Draw up to 80% of the FGTS balance.
  5. The worker shall not be entitled to the benefit of unemployment insurance.

It is also important to point out that now after the Labor Reform, we have four types of termination:

  • Dismissal without just cause: mode chosen when the company decides to disconnect the employee. In this case, in addition to the sums of the dismissal request, notice and a fine of 40% on the FGTS, the employee is entitled to unemployment insurance, depending on the time spent working, and to withdraw the FGTS.

  • Dismissal for just cause: when there is a strong and proven reason for employee’s dismissal. Among the reasons, we mention: abandonment of employment, act against the company or some colleague, among others. In dismissals for just cause the employee receives the balance of salary and vacation due.

  • Request for dismissal: when the employee asks to leave the company and receives his salary balance, plus vacation and thirteenth proportional.
  • Dismissal agreed: when employee and employer decide that the relationship between company-employee should be terminated. For this new type of termination, the employee is not entitled to unemployment insurance, however, he is entitled to withdraw up to 80% of the FGTS, half of the notice (15 days), if indemnified, half of the fine on the FGTS balance. 20%) and other labor funds (salary balance, vacation + 1/3, 13th salary etc.) in full.

 

Dr. Athos Freitas Fernandes Souza – OAB/MG 176.707
Dr. Giovanni Bittencourt de Souza – OAB/MG 176.984

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