INDIVIDUAL DISMISSAL (JUST CAUSE)
|DESPEDIMENTO INDIVIDUAL (JUSTA CAUSA)
INDIVIDUAL DISMISSAL (JUST CAUSE)
As defined in Portuguese law, just cause consists in culpable behaviour on the part of the employee which, because of its seriousness and consequences, makes the continuance of the employment relationship immediately impossible in practice (Article 9, Termination of the Employment Contract and Fixed-Term Contracts Act). It represents a general provision or indefinite concept whose fulfilment depends on the circumstances of each particular case, initially resting on the employer's own judgment and subsequently subjected to assessment by the courts in the event of a legal action against dismissal (see unfair/wrongful dismissal ). The essence of the concept of just cause consists in the impossibility in practice of continuing the employment relationship. This means that it is necessary to relate the facts forming the basis of just cause, the employee's culpable behaviour, to a given situation. Just cause for dismissal exists when the employee's behaviour, given its seriousness and consequences, creates a situation such that "immediate termination of the contract becomes so legally compelling that neither the protective tendency of the law to favour continuance of the contract nor defence of the special situation of employees can obstruct it" (Bernardo Xavier , 1992).
The general provision laid down in the Act is supplemented by a list of the various situations or forms of behaviour on the part of the employee which fall within the concept of just cause. To verify just cause in each particular case, it is not enough merely to demonstrate the occurrence of one of these forms of behaviour; it is always necessary to view them within the general concept or provision in order to determine whether they result in the practical impossibility of continuing the employment relationship. The legal concept of just cause must be placed in relation to Article 53 of the Portuguese Constitution, which states: "Workers are guaranteed security of employment, and dismissal without just cause or for political or ideological reasons is prohibited". Interpretation of this provision was the subject of a polemic ruling by the Constitutional Court in 1988 regarding a law proposing extension of the concept of just cause for individual dismissal to reasons of an objective nature connected with the employee or the enterprise. The question posed here concerns the scope of the constitutional concept of just cause: namely, whether it is confined to subjective reasons relating to the employee's conduct, or whether it may also include reasons of an objective nature connected with either the employee or the enterprise. This problem results from the developments that have taken place in Portuguese legislation on the matter over the past fifteen years.
Two theories, essentially, have been advanced. One holds that the constitutional provision was intended to limit individual dismissal to cases where there is a disciplinary reason. A second argues that the Constitution intended that all dismissals should be justified, and that the concept of just cause was therefore meant to include both disciplinary and economic reasons. The Constitutional Court decided in favour of the first interpretation, but this decision, strongly criticized by the majority of legal authors, is clearly incorrect. It is obvious that Article 53 enshrines a guarantee of job security and that this guarantee must be observed. The sole requirement which follows from this is that dismissal should always have a reason, and that the reason should be "fair, adequate, generally acceptable and, as far as possible, susceptible of assessment by the courts". Although erroneous, the Constitutional Court's decision was reflected in the new Act of 1989 on termination. Faced with the impossibility of introducing forms of individual dismissal based on objective reasons, the legislators opted for the creation of a formula called "termination of the contract of employment on the grounds of job shedding for objective reasons", i.e . individual redundancy, resembling the corresponding system of regulation of collective dismissal (see redundancy ). Since then there has been a further broadening of individual dismissal through the introduction of a form of dismissal for objective reasons (see dismissal for failure to adapt ). The compatibility of this new type of dismissal with the Constitution has been expressly recognized in 1991 by the Constitutional Court, thus shifting the position it initially advocated.
Although dismissals represent only some 2 per cent. of instances of termination of the contract of employment, there is an abundant body of case law on the subject of just cause since legal actions against dismissal make up a substantial proportion of all labour litigation. An indication of the instances of just cause which occur most frequently in cases brought before the courts can be found in Table 4 .
Burden of proof
The burden of proof of just cause for dismissal falls upon the employer. It is therefore the employer who must prove the facts on which a dismissal is based, although it is of course the court which arrives at a conclusion. Nowadays, there is a general tendency for the courts to require that the employee should prove the fact of dismissal, while the employer should prove that the grounds for the dismissal constituted just cause.