Labor Standards and Employment Contracts
Hierarchy of Labor Standards
In cases of conflicting labor standards, the principle of upholding worker protection prevails. The source containing more favorable provisions for the employee should take precedence.
Functions of Legal Principles
- Creative Function: Legislators consider guiding principles when drafting bills.
- Integrative Function: Principles fill gaps in existing laws.
- Interpretative Function: Principles influence the interpretation of legal rules.
- Normative Function: Principles guide decisions in specific cases.
Distinguishing Work and Employment
An employment contract is a legal agreement where an individual (employee) agrees to work for another person or entity (employer) in exchange for payment (salary). Key elements include: individual employee, paid work, continuity, subordination, and remuneration (Article 3 of the CLT).
Work encompasses any activity, paid or unpaid. Employment is a formal, ongoing, paid work arrangement with an organization or individual (domestic). Employment involves a formal contract or public appointment. Someone employed is working, but not everyone working is formally employed.
Hypothetical Scenario
Márcio joined a labor cooperative for IT services, working daily for three years under supervision and receiving fixed monthly payments. Despite the cooperative arrangement, a genuine employment relationship exists due to the presence of personhood, subordination, remuneration, and continuity. The reality of the work arrangement, not its formal label, determines its legal nature. The presence of employment relationship elements overrides the cooperative structure.
Interruption vs. Suspension of Employment
- Interruption: Employee doesn’t work but receives salary (e.g., holidays, excused absences).
- Suspension: Employee doesn’t work and doesn’t receive salary for those days.
Contract Termination
Termination ends the employment contract. Resolution refers to the act of nullifying a contract or legal act. In administrative law, it’s a decision by a collegiate political entity.
Termination Modalities
- Termination for Cause: Due to misconduct by either employer or employee.
- Termination Without Cause: Neither party commits misconduct.
Termination for Cause
Employee misconduct is defined in Article 482 of the CLT. This article provides an exhaustive list of justifiable reasons for dismissal.
Termination Without Cause
- Resignation: Employee voluntarily leaves without misconduct.
- Dismissal Without Cause: Employer initiates termination without employee misconduct.
- Mutual Agreement: Both parties agree to end the contract (e.g., voluntary disengagement plan).