The Disciplinary Procedure deserves a reform
Given the Government’s agenda regarding reform of labour legislation, it must be acknowledged that, in general, the proposals put forward for political and social discussion are both relevant and significant.
Among the various proposals presented, one has recently stood out: the attempt to simplify the disciplinary procedure leading to dismissal, in cases involving micro, small, and medium-sized enterprises – that is, companies with fewer than 250 employees.
Considering the structure of the Portuguese business sector, this change, if implemented, would cover the vast majority of our employers.
Where does this proposed change come from, and what does it actually represent?
In line with the constitutional principle of job security and the prohibition of dismissals without just cause, dismissal based on conduct attributable to the worker must necessarily be preceded by a procedure – known as the “disciplinary procedure.”
This procedure is structured into three fundamental stages: the accusation (properly detailed); the worker’s defence (right to be heard); and the communication of a written and reasoned decision.
Although it is a unilateral procedure initiated by the employer, over the past decades it has been shaped into something resembling a process that is not adversarial in nature but rather designed to provide significant guarantees to the worker.
The worker’s safeguards (essentially, the right to defence and to be heard) are present at various stages of the procedure, including: the requirement for the accusation letter to be properly detailed; the possibility to consult the case file and respond to the accusation; the right to request the inclusion of evidence in the file (namely, documentary) and to request the production of evidence (namely, witness testimony).
In addition, once the production of evidence is complete, the worker must receive, in writing and within a set timeframe, the final decision of the disciplinary procedure, accompanied by a duly reasoned report.
The proposed change under discussion, in an attempt to simplify a procedure that is undeniably complex and time-consuming, would, among other things, remove the stage of evidence gathering initiated by the worker, thereby releasing the employer from the obligation to carry out evidentiary steps requested by the worker.
The purpose of the proposal is, as can easily be understood, to streamline and simplify. However, it must also be noted that, since the evidence gathered during the disciplinary procedure serves to support the dismissal decision (or the imposition of another disciplinary sanction), this does not exempt, under the principle of immediacy of evidence, the production of evidence in court in the event of judicial challenge. This means that judicial review of the legality and validity of a dismissal will always require that the evidence be produced before the judge, in court, and not merely rely on any evidentiary steps taken during the disciplinary procedure.
The proposed change, however, runs counter to the long doctrinal and jurisprudential path that has been followed in the field of disciplinary procedures, a path characterised by strong guarantees and worker protection.
If this change is implemented as proposed, the worker will be left with fewer instruments and tools to present their version of the facts during the disciplinary procedure and, more importantly, to prove them.
This difficulty will arise particularly in situations where the facts alleged by the worker in response to the accusation letter necessarily require witness evidence – a step which, according to the proposal, the employer (or the officer conducting the procedure) would no longer be obliged to carry out.
Doctrine and case law have firmly demonstrated that among the absolutely non-negotiable and fundamental guarantees in a disciplinary procedure is the worker’s right to respond to and contest the accusations made against them.
Currently, evidentiary steps requested by the worker may only be dismissed if – duly explained in writing and justified by the employer or the officer conducting the procedure – they prove to be manifestly irrelevant and/or merely dilatory. In any case, such assessment will always be subject to judicial review.
That being said, even if the need to simplify the procedure is acknowledged, it is important to anticipate the difficulty in justifying the removal of this minimum level of guarantee. In fact, in 2009, a similar reform did not pass the Constitutional Court’s scrutiny, and the reasons for that decision are well known.
Finally, it is worth emphasising the opportunity once again lost to revisit – and materialise – the disciplinary procedure regime as a whole.
Faced with a framework long recognised as scarce and difficult to interpret and apply – essentially built on doctrinal and jurisprudential developments, which are naturally divergent – limited, piecemeal amendments do not seem sufficient or relevant, as they contribute little or nothing to resolving the doubts and concerns of practitioners.
The regime governing disciplinary procedures, given its vast importance within the context of labour relations, deserves (and requires) to be applied with clarity and certainty. Any worthy reform proposal should aim for no less than this.
