TRIBUNAL CONSTITUCIONAL Portugal

RULING No. 324/17

22 of June of 2017

Headnotes:

Under the Constitution, accused persons in both administrative-offence proceedings and any other proceedings in which sanctions can be imposed must be able to enjoy the rights to be heard and to defend themselves.

The Labour Code (CT) gives workers a time period in which to consult the casefile regarding any disciplinary proceedings that are brought against them by their employer and to respond to the written accusation of misconduct that must be addressed to them in such cases. The worker is entitled to submit any items he/she considers relevant in order to clarify the facts and his/her participation in them, to attach documents to the case file, and to request the taking of any steps that prove pertinent to clarification of the truth.

The present case concerned the dismissal of a worker.

If an employer dismisses an employee and violates his/her rights in the process, it commits a serious administrative offence. Just because the employer has valid grounds for its decision to dismiss the worker, and even if it communicates those grounds to the latter in both its formal accusation of misconduct and its decision, it cannot ignore the latter’s right to defend him/herself in the way and at the moment in time he/she chooses to exercise it.

It is unconstitutional for any type of sanction – be it of an administrative-offence, administrative, fiscal, labour-related, disciplinary or any other kind – to be imposed without first giving the accused the opportunity to be heard and defend him/herself against the accusations.

Having said this, if a dismissal is unlawful because the proceedings that led to it are invalid, but the substantial grounds for the dismissal remain, the dismissed worker is only entitled to compensation and not the other remedies for unlawful dismissal.

This is a Solomonic solution that seeks to reconcile the different values at stake in such situations. It takes account of the fact that the dismissal is substantially justified, which is why the worker cannot opt for reinstatement and the amount of his/her compensation is also reduced; but it also penalises the employer for behaving in a manner that was illicit, even if only in procedural terms.

In adopting this balance, the legislator has attached autonomous value to the accused’s right to a defence in disciplinary proceedings, without thereby denying that in the absence of irregularities which would be serious enough to invalidate the dismissal and given the continued existence of the facts and grounds which justified the decision to dismiss in the first place, that decision should not itself be declared illicit.

The appellant employer argued that the norm under which it was required to pay the reduced compensation was in breach of the principle of equality. The Court recalled that in disciplinary labour proceedings, the employer and the accused worker are not in parallel situations: the former takes the initiative, directs the proceedings and is responsible for complying with the applicable law; the latter simply contests the accusations made against him/her. Only the employer is in a position to violate the other party’s procedural rights to a defence. The worker can only choose whether to exercise those rights or not. These are not comparable situations, which is why, where the norm in question is concerned, the employer and the employee are not part of any form of genus proximum. The essential condition for there to be a breach of the principle of equality is thus not met.

The Court also rejected the argument the appellant derived from the “idea of the equality of arms”. In dismissal proceedings, the worker is defending his/her labour bond, which is why any procedural irregularities he/she commits necessarily prejudice his/her own labour situation. As such, in addition to the fact that any irregular procedural actions taken by the worker do not count towards the final decision (as far as and under the terms in which the law permits this), no additional sanctions within the framework of such proceedings are warranted.

In the light of all of the above, the Constitutional Court declined to find any unconstitutionality in the Labour Code norm whereby a mere irregularity on the part of the employer in the shape of a defect in the dismissal procedure must be sanctioned by payment of half the compensation that would have been owed to the dismissed worker if the dismissal had itself been illicit.

The Court said that this legal solution is one in which the legislator exercised its freedom to shape legislation in pursuit of a legitimate goal, and is neither disproportionate, nor in breach of the principle of equality.

Summary:

The present case involved a concrete review of the constitutionality of a norm. At first instance, a worker challenged both the lawfulness of his dismissal by the Portuguese Equestrian Federation (FEP) and the latter’s proper conduct of the dismissal process. His suit was denied and he appealed to the Lisbon Court of Appeal (TR-L), which found that there had been an irregularity in the disciplinary proceedings leading to the dismissal, in that the employer had not taken probatory steps requested by the employee in his response to the formal accusation of misconduct.

The Court of Appeal ordered FEP to pay its former employee compensation equal to half that which he would have received under the regime governing payment at the worker’s request of compensation in lieu of reinstatement, which is one of the possible consequences if a dismissal is illicit.

FEP appealed this decision to the Constitutional Court, alleging that the norm applied by the Court of Appeal was unconstitutional because it violated the constitutional principle of proportionality and its subprinciples (appropriateness, necessity, and fair measure).

The Constitutional Court said that where the disciplinary proceedings that precede dismissal with just cause are concerned, it is important to distinguish between different types of procedural irregularity. Very serious ones, which are typified, invalidate the dismissal by invalidating the procedure and thus rendering the dismissal itself unlawful. Serious irregularities impede or impair the worker’s right to defend him/herself, and this is the category that includes the unjustified failure to conduct probatory steps requested by the worker in the response to the accusation of misconduct; although such a failure is an administrative offence, it does not in its own right prevent the dismissal from being unlawful, but does oblige the employer to compensate the former employee. Some constitute administrative offences. Finally, some irregularities are just that – mere irregularities. In casu, the Court said it was necessary to analyse the regime governing the second category – serious irregularities which, albeit they are harmful to the worker’s right to a defence, do not invalidate the disciplinary proceedings and therefore do not make the dismissal unlawful.

Only a court of law can determine whether a dismissal was properly conducted and lawful. Workers who consider that they have been unjustly dismissed must take the initiative of contesting or challenging that dismissal before a court. The court must in turn always say both whether the alleged grounds for the dismissal really existed, and whether they provided sufficient cause to dismiss.

The reason for awarding compensation to a worker who has been dismissed, even when that dismissal is deemed lawful despite the fact that his/her rights to a hearing and to a defence were limited by formal irregularities in the disciplinary proceedings prior to the dismissal, is to make up for the violation of his/her right to an adversarial process, which is one of the key structural elements of the procedure leading to the imposition of a disciplinary sanction.

In creating this measure, the legislator sought two things: to dissuade employers from engaging in procedural actions that are improperly hostile to the accused worker’s defence; and to compensate the latter for having to resort to the courts in order to definitively clarify the justification for his/her dismissal, because his/her procedural defence rights were violated.

Employers must evaluate the probatory steps requested by workers in such situations; if they conclude that those steps are useless, they must explain why in writing; what they cannot do is to do nothing, just because they consider the worker’s request impertinent.

As such, the Court found no unconstitutionality in the norm in question and denied the employer’s appeal.

Supplementary information:

The Ruling was unanimous.

Cross-references:

Ruling no. 306-03 (25-06-2003).