ADDITIONAL COMPENSATION-FAREWELL WITHOUT JUST CAUSE PRIOR TO DATA BASE

For Euro Aun Brazil in July 14, 2010 at 5:38

Most workers enjoy a benefit, annually given to them, this is the annual adjustment of salary for the category titled "base date". It happens that in practice many employers, rescindiam the employment contract before the employee's salary increase. The legislator concerned about this issue created the additional indemnity provided for in Article 9 of Law No. 7238/84, see:

Article 9. An employee dismissed without just cause, within 30 (thirty) days before the date of salary adjustments, is entitled to additional compensation equivalent to a monthly salary, whether or not opting for the Guarantee Fund for Length of Service - FGTS.

It is necessary that the dismissal is for cause so that the employee may be entitled to compensation, this corresponds to the employee's monthly salary, with the updated value on the date of termination, which comprises the additional legal or agreed, linked to the time unit month is not computable at Christmas bonus, according to the Summary of the TST 242.

NOTICE. LENGTH OF TERM. ADDITIONAL COMPENSATION The jurisprudence of the TST was consolidated in the sense that in calculating the period of notice must be observed the rule of Article 125 of the Civil Code. Thus, computed the period of notice in this circumstance, due to the additional indemnity provided for in Article 9 of Law No. 6.708/79 and Law No. 7.238/84 (Statement No. 306 of TST). Magazine feature known and provided.

Important to note that if the employer dismiss the employee with, for example, 31 days before the base date will not incur the additional payment. We must stick to the practice adopted by some employers who try to circumvent the labor law.

A question that comes up, namely in cases being given notice, compensated or not, tells the time to incidence of additional compensation? That is, in series, the employee is advised of the resignation on July 1 and thereafter, on July 2 days begins to run the notice of 30 days, ending the employment contract on August 02, is the date is based on its category, for example, on September 01, this employee would be entitled to additional compensation?

Yes, according to the Precedents of the TST, see:

Súm.182. The time of notice, even if compensated, to account for the effect of the additional indemnity provided for in Article 9 of Law No. 6708 of 30.10.1979.

Sum. 314. If the termination occurs contratal within 30 (thirty) days prior to the base date, subject to the Statement No. 182 of the TST, the payment of severance pay with the corrected does not preclude the right to additional compensation provided for in Laws No. 6.708/79 s and 7238/84.

Summary:
APPEAL OF INSTRUMENT. ADDITIONAL COMPENSATION LAW No. 7.238/84. INTELLIGENCE OF THE Statement No. 314 TST. Pointed out in the contested judgment that the claimant was fired, with compensation of the notice, on 19 November 1998, considering the projection of the statutory period of 30 days, resilição operated on December 19 that year, after the time base category, qualifying the perception not of additional compensation, but the severance pay based on salary adjusted. It should be noted that the position of not being eligible to receive simultaneous compensation and salary adjustment is not infirmável by the precedent of Statement No. 314 this Court. Although its literalness seems to suggest the possibility of overlapping of these advantages, the allusion to Statement No. 182 indicates the direction to be her incabível if computed the period of notice indemnified, the final term is designed for the period after the base date, in which case the compensation is not payable but the salary increase. The hypothesis addressed in Statement No. 314, that the payment of severance pay with the pay as fixed does not preclude the right to additional compensation, refers to the uniqueness of the case that inspired it, related to the fact that the employer so to have proceeded with the purpose to avoid payment of compensation, there being implied the occurrence of fraud indistinguishable in these proceedings. Grievance that is dismissed. Procedure: AIRR - 808925/2001.6 Date of Judgment: 27/02/2002, Minister Rapporteur: Antonio José de Barros Levenhagen, 4th Class, Date Published: DJ 15/03/2002.

The collective wage readjustment (cause for additional compensation), determined the course of the notice, the employee receives notice of the pre-departure, even if you have received in advance the wages corresponding to the period of notice, even further integrates its service time for all legal purposes, is what tells the Article 487, § 6 of the Labor Code.

It is worth noting, finally, that this notice period will be due to the employer's contribution FGTS yet, even if not working in this period, and highlights the 305 Precedent TST.

The additional compensation therefore serves as a kind of penalty for employers who, in anticipation of the payment adjustment collective class, dismiss your employee, in his eagerness not to pay it as it should.