TRIBUNAL CONSTITUCIONAL Portugal

Ruling no. 834/2024

Headnote

Amnesty and pardon by the State cannot extend to include disciplinary offences and sanctions related to private employment.

Summary

I - A private sector worker challenged in court the disciplinary sanctions imposed on him by his employer, and the court decided to apply Law no. 38-A/2023, of 02.08 (which established a pardon of penalties and an amnesty for offences on the occasion of the World Youth Day being held in Portugal) to the disciplinary offences for which the worker was convicted, considering them amnestied, with the consequent upholding of the action brought by the worker.

II - The Constitutional Court was called upon, due to an appeal by the employer, to rule on the constitutionality of the interpretation made by that court that Law no. 38-A/20283, of 02.08, applies to private labour disciplinary offences and labour disciplinary sanctions applied by private law entities.

III - The application of the amnesty/pardon to private labour disciplinary offences and sanctions corresponds to a direct intervention by the state in the sphere of management of employers and in the freedom they should enjoy therein, which is constitutionally recognised, without any justification for the effect and unrelated to the event that was the genesis of this amnesty, and it is not clear what constitutional or legally protected interest or right can justify this extension of state clemency to private organisations.

IV - The extension of the application of this amnesty/pardon to all disciplinary offences, whether public or private (which had never happened before), is also not based on the principle of equality, given the different nature of the employer (public/private) and the fact that, in the case of the State, it corresponds to a self-limitation of the State's right to punish, whereas, with regard to private employers, it entails an unjustified limitation of employers' disciplinary expectations.

V - This interpretation leads to an unjustified and groundless extension of the scope of this amnesty/pardon, while at the same time inappropriately and disproportionately restricting the employer's rights embodied in the disciplinary power conferred on them and recognised by law. This corresponds to an unlawful interference by the State in the rights and freedoms conferred on private employers. The Constitutional Court thus decided to uphold the appeal and deem unconstitutional the interpretation of Law no. 38-A/2023 that includes within its scope private labour disciplinary offences and labour disciplinary sanctions applied by private law entities, for breaching the principle of freedom of private initiative and freedom of enterprise arising from Articles 61(1), 80(c), and 86 of the Constitution of the Portuguese Republic.