The notice period in employment relationships
- Elton Martins
- 8:10 am
Employers and employees have many doubts and uncertainties about the notice period, especially since Law 12,506/11 introduced proportional notice. To clarify the subject, this article goes through several situations showing, for each type of termination of the employment contract, the obligations regarding the notice period.
First, the notice period is the time an employee must keep working after resigning. It is also an employee's right when the employment contract is terminated at the employer's initiative. This period usually corresponds to 30 days.
| Type of termination | Notice period | Notes |
|---|---|---|
| Company dismisses without cause | Worked or paid in lieu, at the company's choice | If worked, the employee chooses between 2 fewer hours a day or the last 7 days off |
| Company dismisses for cause | None | The employee also loses FGTS withdrawal and unemployment insurance |
| Employee resigns | Works 30 days or has the amount deducted | No reduced hours and no 7 days off |
Dismissal without cause by the company
In this case, the company may require the employee to work during the notice period, known as worked notice, for another 30 days. The employee has the right to choose between working with a two-hour reduction in the daily schedule or stopping work for the last seven days of the notice period. An employee who fails to serve this period without justification may have the missing days deducted from their salary, and may be dismissed for cause if, during the notice period, they commit serious misconduct under art. 482 of the Brazilian Labor Code (CLT).
The company may also choose pay in lieu of notice: the employee receives compensation corresponding to the 30 days, because the company chose to release the employee at the same moment the termination was communicated.
Dismissal for cause
An employee dismissed for cause cannot keep working and is not entitled to payment of the notice period. Other restrictions also apply, such as losing the right to withdraw the FGTS balance (the severance fund held in a linked account) and the right to unemployment insurance, among other rights the employee no longer has when the contract is terminated for cause.
Resignation by the employee
When an employee resigns, they have two options: serve the notice period working or not serve it. In the first, they must keep working for another 30 days from the date the resignation was notified, without the option of reducing the schedule by two hours or taking the last seven days off.
If the employee chooses not to work the notice period, the company may deduct from the termination payment the amount corresponding to the 30 days, known as notice paid by the employee. If the termination balance is not enough to cover the 30 days, the employer cannot require the employee to pay the difference.
Proportional notice
In all cases in which the company dismisses the employee, since October 2011, when Law 12,506/11 came into force, dismissed workers are entitled to proportional notice: in addition to the 30 days, another 3 days for each full year worked at the same company, up to a limit of 90 days.
Example: an employee worked for the same employer for 3 years. In addition to the 30-day notice, which may be paid in lieu or worked, the employer pays another 9 days as notice paid in lieu, for a total of 39 days. However, the employee can only be required to work 30 days of notice, with the corresponding reductions in the schedule or the seven days off.