Will workers no longer be required to return the compensation received in order to contest their dismissal?

1. What is currently required of the worker when they intend to contest their dismissal?

When subject to collective dismissal, due to the elimination of the job position or due to unsuitability, the worker is entitled to receive compensation, determined based on their length of service.

Once the full compensation has been received, it is presumed that the worker accepts their dismissal. Thus, to demonstrate opposition to the dismissal, the worker is obliged to return or make available to the employer the amount of compensation received.

This means, in other words, that to legally contest the dismissal decision, the worker must prove, either prior to or at the same time as filing a claim in court, that they have returned the compensation to their employer.

2. What could change with the Government’s proposal?

In the draft labor law reform, the Government proposes to eliminate the presumption that the worker accepts the dismissal by receiving compensation.

To clarify, what is being proposed – still under discussion – is that the worker should no longer be required to return the compensation to the employer in order to contest a collective dismissal, due to the elimination of the job position or due to unsuitability.

The draft under review further provides that, in the context of legal proceedings regarding the dismissal, the worker must provide a security deposit for the compensation received, under the court’s supervision, and only in the event that they choose to request reinstatement to their job position. Thus, the return of the amount to the employer is replaced by a security deposit to the court, and this only applies if the worker requests, as a consequence of a potential finding of unlawful dismissal, to be reinstated in the company.

It appears from the proposed change that a dismissed worker who, during the dismissal challenge process, opts for compensation instead of reinstatement will not be forced to return the compensation received and will be able to retain this amount without it implying acceptance of the dismissal.

For now, we must await the outcome of the ongoing reform process.