Getting out of a job, whether for having resigned or being fired is a common situation at some point in most people’s lives. Being a dismissal or a request for voluntary dismissal by the employee, in both cases the so-called prior notice must be fulfilled . This is a right guaranteed for both sides, but it requires compliance with rules.
For those who do not yet know what they mean, early warning refers to the early notification of termination of employment relationships by one party (contractor or contractor). In the case of a request for resignation, the official is responsible for this communication, while the company is responsible for communicating in case of dismissal without just cause.
The notice is regulated and has its guidelines described in the Consolidation of Labor Laws (CLT). In addition, it is in this document that all the labor obligations of both parties are governed, that the types of prior notice exist and which are applied for each case. Following strictly such determinations guarantees to the employee the receipt of the termination due properly, while for the company is the guarantee of compliance with the legislation.
What does early warning mean?
In short, notice is the amount of time an employee must serve after his or her dismissal (whether voluntary or not). This period is equivalent to a minimum of 30 days, and the employee will be paid for the days worked normally at the end of this period.
It is important to note that prior notice is valid only for dismissals without cause and for dismissal requests by the employee. In cases of fixed-term employment contracts, this condition is not allowed, since there is a date already determined for the end of the activities.
However, it is worth looking at whether the contract has the clause “assecurator of the reciprocal right of early termination” – which means that notice will be required . In addition, dismissals for just cause also do not guarantee this right for the employee and does not oblige the company to apply it.
Origin of notice
The notice in Brazil began to be used from 1850 through the Commercial Code, and was later incorporated into the Civil Code in 1916. As early as 1923, its definition appeared in Decree 16,107, more specifically in Article 22.
Such determination had only reached Labor Law in the year 1935 , generating a great deal of turmoil and determining different rules from the current ones. One was that only the employee had the prior obligation to warn him to leave, providing punishment if he did not do so.
As for the definition of prior notice with the regulations that we know today, it was only in 1943, through the edition of the Consolidation of Labor Laws, which was amended by Law no. 12,506 / 2011, popularly known as the Early Warning Act.
Legal nature of prior notice
As regards its legal nature, prior notice is staggered in a threefold nature : to notify the other party to the contract of employment that there is no further interest on the part of the communicant in the continuation of the agreement; requirement of communication within a minimum period; and requirement of the employee to work on the notice period, be it granted by the employer or by the employee himself.
How does the Prior Notice work in 2019? Main features
Following the amendment of the text in 2011, some changes were implemented and directly affected dismissed employees without just cause. Prior to editing, the employee was entitled to receive one month’s notice. Afterwards, it became law of dismissed without just cause the receipt of another 3 days notice for each year worked in the company. The same can be fulfilled worked or indemnified.
As for the need to work on those extra days, there is still no clear determination in the law. The best thing to do is talk to your manager or the Human Resources (HR) department so that you can decide the best way to do it. Be sure to have this conversation, as the failure on a day’s notice interferes with the value of your termination.
As for the fine that has always been charged in case of non-compliance with the notice by the employee, its value was not changed by the edition. Most businesses continue to charge a full pay penalty if you quit and fail to comply with the notice.
Types of advance notice
Before you know what procedures to take in cases of company termination, you need to understand what types of notice exist, which vary according to the type of dismissal that has occurred.
Regulated by the current Law are two: prior notice worked and indemnified prior notice. The notice given at home is a modality not provided for by law, but carried out by many companies. Among the main practical differences between these types are the value to be received and the need to work in this period.
Previous notice worked
This type of notice is given when the company sent the employee away without cause, requiring that the employee work within the specified time of notice. The company may require work of 30 days or up to 90 days depending on the function and time of the employee’s home.
For compliance, there are two possibilities for the worker: to work two hours less per day or to stop working seven days at the end of the notice. It is up to him and the manager to decide how best to do this.
This type of notice also fits in cases where the employee has resigned voluntarily. Thus, the same will receive the salary of the days that were worked on the notice as soon as the term is fulfilled, in addition to the amount proportional to the vacation and the 13th salary. All of these amounts are paid upon termination, on the first business day after the termination of the employment contract.
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It is worth noting that the non-compliance of any day of this period will result in a discount of the amount in the amount of termination to be received. The termination shall be released on the first business day after the end of the employment contract (equivalent to the last day of the prior notice).
Journey Reduction Rules In Prior Notice Worked
In certain cases, it is possible to request from the company the reduction of the workday worked on the previous notice. To understand when this reduction applies, let’s look at how the schedules work in the Early Warning Act.
In the event that the employee has resigned, he or she must complete the workday throughout the prior notice. This is because the law and the company understand that the employee has already relocated to the job market, not having to use that time to look for a job, for example.
Working Two Hours Less Per Day
Already when the employer took the initiative to dismiss the employee without just cause, the worker can have his work reduced by 2 hours daily.
Do not Work For Seven Days Racing
It may also be missing 7 calendar days at the end of the notice (counted weekends and holidays), as already mentioned above.
Other Rules of Prior Notice Worked
This reduction is regulated in the CLT, whereby the employee is given the free will to opt for one of the two possibilities of reducing working hours during the 30 days. It is important to emphasize that these days and these hours not worked are of the worker’s right, not being discounted any value in its termination.
However, those who choose to miss the 7 consecutive days must comply with the expulsion directly and not alternately. In order for these seven days to be taken on alternate days an agreement will be required between you and the employer.
Indemnified advance notice
The company that dismisses an employee without just cause may choose not to comply with prior notice by the employee. Such decision may be related to the contracting already done of another employee for this position or the closure of the sector, for example.
However, it will be obliged to indemnify you, that is, to pay you for the 30 days that should be served, even if they are not worked. Payment of termination must be made within 10 calendar days after the date of termination.
How to Calculate the Indemnity Amount?
As for the calculation of the indemnified advance notice, this is the sum of the employee’s full salary plus the average of the salary installments that have changed in the last 12 months. In short, the basis of the calculation is the last salary received by the employee.
In this calculation should be included the gratuities for additional nocturnal, insalubrity, dangerousness, among others. In addition to these, the 13th salary, FGTS and proportional vacations are also due in case of dismissal without just cause, in addition to the fine of 40% of the FGTS due to dismissal under these conditions.
Proportional Prior Notice – Table Indemnified Prior Notice
As mentioned earlier, notice following the change made in the Law in 2011 is now proportional to the time worked by the employee in the company. In this way, employees dismissed without just cause were entitled to an increase of three days in the notice period, per year of service provided in the same company.
The proportionate notice period starts from the end of a year of employment contract and continues until the limit of 20 years of work. So, in practice, the table looks like this:
Previous notice kept at home
Not regulated by law, but applied by some companies as a form of agreement, this type of notice is characterized by compliance with the 30 days notice without prior work. The employee stays home and will usually receive 30 days’ notice as if he had worked.
Among the reasons that lead the company to sign this agreement, which in some ways is illegal, is the largest period for the payment of termination of the employee, avoiding that the notice falls within the prior notice indemnified, which must be paid in 10 days after the date of dismissal. For the worker, this condition is also favorable, since it is a time for him to start looking for another job or to rest, as he thinks fit.
Who chooses the type of notice?
Nowadays, after the Law is passed, it is the employee who decides how to comply with the prior notice to the employer, that is, how he will pay for this period due to work. Thus, such a decision may be through a discount on termination or working the 30 days notice. The employer who does not want the employee to work must release him from the previous notice, being also the employee’s right to use this imposition if he prefers.
It is worth noting that, in compliance with current legislation, the agreements are the responsibility of the employee and employer, and new forms may be negotiated to comply with such determinations.
When is the Prior Notice not applicable?
There is no prior notice when the employee is fired for cause. He can not continue working in the company and is not entitled to receive termination. In addition, you can not withdraw the money you have in the FGTS , nor receive the unemployment insurance.
Reasons For Resignation For Just Cause
Among the motivations that lead to a dismissal for just cause are:
- Incontinence or poor procedure
- Usual negotiation
- Criminal conviction
- Company secret breach
- Indiscipline or Insubordination
- Abandonment of employment
- Physical aggressions
- Moral Offense Against Employer
- Moral offense against colleagues
- Acts against national security
- In-company gambling
Within these motivations, the employer must also evaluate the proportionality that led to these acts, as is the case of gravity, also taking into account the background of the employee inside and outside the company. In addition, it is provided that the penalties of just cause must be equivalent to the error committed. Learn more about what causes a Dismissal for just cause .
Depending on the case that motivated the dismissal for just cause and a negotiation between employer and employee, some receive termination, which must fall after 10 calendar days from the day of dismissal.
Duration and Time – Sum of the Early Warning Time
Since October 2011, Law No. 12,506 / 11 amended the rules for calculating the notice period. In practice, nothing has changed for workers who remain in the company for up to 1 year. They are still worth the 30 days.
The novelty is for those who have ties with the company, which exceeds 12 months. With the new Law, in this case, must be added 03 days a year worked.
Reconsideration of the Notice
During the notice period, the applicant may be reconsidered, either the employee or the employer. That is, the withdrawal in relation to the termination and termination of labor contract. In this way, art. 489 of CLT determines that:
“Upon notice, termination shall become effective upon the expiration of the respective time limit, but if the notifying party reconsiders the act before its expiration, the other party shall be entitled to accept the reconsideration.”
Thus, it is understood that in the case of withdrawal, the other party has the flexibility to accept it or not within the 30 days notice period, regardless of whether it is done by the employer or the employee. If the withdrawal is accepted, the contract already in force remains in accordance with article 489, sole paragraph, of the CLT.
Do I Need to Fulfill the Advance Notice?
For those who do not comply with the 30 days notice (when it is mandatory to work them), whether by resignation or resignation, the company is in its full right to charge a fine of one month’s salary, which will be discounted of the termination payment.
Thus, contrary to what the company must do in the indemnified advance notice, in which it is obliged to indemnify the employee for failure to comply with the notice, in this case the employee must indemnify the company for not complying with such legal determination. When the company chooses not to comply with the prior notice, this charge is undue.
Trainees Must Follow Prior Notice?
Prior notice does not apply to trainees , as they do not actually create an employment relationship (provided for in CLT) with the company. Therefore, they have no right to prior notice , 13th salary, unemployment insurance, termination, among others.
Prior Notice and Provisional Stability
The most common provisional stabilities are of the pregnant woman and the injured employee. The discussion took place from the moment the notice was given, the contract of employment passed to the modality of determined time, which was incompatible with the provisional stability institute.
Thus, Article 391-A in the CLT extended the guarantee of employment for the maid who becomes pregnant during the course of the prior notice worked and even in the projection of the warning, being this stability up to 5 months after delivery. The same principle applies to the employee who is injured or who has an occupational disease in the period.