The Disciplinary Procedure deserves reform

Having recognized the Government's agenda for reforming labor legislation, it is necessary to recognize the merit and relevance of most of the proposals put forward for political and social discussion.

Among the various proposals presented, the most recent highlight was the attempt to simplify the disciplinary procedure, with a view to dismissal, when micro, small and medium-sized companies are involved – that is, companies with fewer than 250 employees.

Considering the Portuguese business community, the change, if it goes ahead, will cover most of our employers.

Where does the proposed change come from and what does it represent, after all?

In line with the constitutional principle of job security and the prohibition of unfair dismissals, dismissal based on an act attributable to the employee must necessarily be preceded by a procedure – known as a “disciplinary procedure”.

This procedure is structured into three fundamental phases: the accusation (duly detailed); the defense of the worker (adversarial); and the communication of a written and reasoned decision.

Although it is a unilateral procedure, promoted by the employer, the construction that has been made around it, in recent decades, has culminated in the tendency to structure it as a process, not of parts, but much more guaranteeing the worker.

The guarantees (essentially, of defense and adversarial proceedings) of the worker are reflected in several stages of the procedure, including: the necessary detailing of the Fault Note; the possibility of consulting the file and submitting a response to the Fault Note; the ability to request the addition of evidence to the file (namely, documentary evidence) and to request the production of evidence (namely, testimonial evidence).

In addition, and once the production of evidence has been completed, the employee must receive, in writing, and within a defined period, the final decision of the disciplinary procedure, accompanied by a duly substantiated report.

The proposed amendment under discussion, in a line of simplification of a procedure that is undoubtedly complex and time-consuming, comes, among other things, to dispense with the investigation phase resulting from the employee's initiative, thus relieving the employer of the obligation to carry out the evidentiary procedures requested by the employee.

The proposal's purpose, as is readily apparent, is to streamline and simplify proceedings. It is also true that, although the evidence produced during the disciplinary proceedings serves the purpose of substantiating the dismissal decision (or the application of another disciplinary sanction), the principle of immediate evidence does not, however, exempt the production of evidence in court in the event of a judicial challenge to the dismissal. This means that judicial review of the regularity and lawfulness of a dismissal will always require evidence to be produced before a judge, in court, and any evidentiary efforts undertaken during the disciplinary proceedings will not be sufficient.

The change comes, however, contrary to the long path (doctrinal and jurisprudential) that has been taken within the scope of the disciplinary procedure, in a markedly guarantee-based and worker-protective direction.

If the change goes ahead, as proposed, the worker will find himself in possession of fewer instruments and tools to present his version of the facts in disciplinary proceedings and, above all, to prove it.

The difficulty will arise, especially, in situations where the demonstration of the facts alleged by the employee, in response to the Statement of Guilt, necessarily requires the production of testimonial evidence, a step that, according to the proposal, the employer (or instructor responsible for conducting the process) will be exempt from carrying out.

Doctrine and jurisprudence have firmly demonstrated to us that, among the absolutely non-negotiable and fundamental guarantees in disciplinary proceedings, is the exercise of the adversarial system by the employee in the face of the facts imputed to him.

Currently, the evidentiary procedures requested by the employee may only be waived if—provided they are duly alleged in writing and substantiated by the employer or the person in charge of the case—they prove to be manifestly irrelevant and/or dilatory. This assessment, in any case, will always be subject to judicial review.

That said, and while acknowledging the relevance of simplifying the procedure, it's important to anticipate the difficulty of considering the exclusion of this minimum guarantee level. Indeed, in 2009, a similar change failed to pass the Constitutional Court's scrutiny, and the reasons for that decision are known.

In a final note on the topic, we highlight, with particular emphasis, the opportunity that, once again, is lost to revisit – and materialize – the disciplinary procedure regime as a whole.

In the face of a regime that has long been recognized as being limited and difficult to interpret and apply – essentially structured on doctrinal and jurisprudential constructions, which are naturally divergent – ​​we do not consider a few surgical changes, which do little or nothing to dispel the doubts and concerns of the person applying it, to be sufficient or pertinent.

The disciplinary procedure system, given its vast importance in the context of employment relationships, deserves (and needs) to be applied with clarity and certainty. No less is required of any worthy reform proposed.