By Dr. Eduardo Serra Jorge [email protected]
In his column, Lawyer Eduardo Serra Jorge from lawyers firm Eduardo Serra Jorge & Maria José Garcia – Sociedade de Advogados, R.L., will be addressing legal issues affecting foreign residents in Portugal.
When is an absence from work considered justified or unjustified? And do you need to previously inform your employer or present them with any kind of document proving your absence?
Under the Portuguese Labour Code (PLC), which was approved by the Law n.º 7/2009, the physical absence of an employee from the workplace during the daily working hours represents a period of time a person is away from his/her job, which may have different consequences depending on the reason given by the employee.
There are justified and unjustified absences from work. While justified absences are exhaustively specified on the PLC, unjustified ones do not have any legal support.
An absence from work must meet three legal criteria: to have legal basis, to be duly communicated to the employer and to be proven.
1. Legal basis
• At the time of marriage – 15 consecutive days.
• If the employee’s spouse or close relatives (parents, children, parents-in-law) die – up to five consecutive days.
• If employee’s grandparents, grandchildren or brothers/ sisters die – up to two consecutive days.
• If the employee is also a student, he/she is allowed to be absent from work on exam days and on the days before to prepare for the exam;
• If the employee is not able to be present at the workplace for a reason the worker cannot be held responsible for, namely a medical treatment, an illness, accident or if carrying out a legal duty;
• For urgent and essential assistance to the employee’s child, under 12 years old, caused by any illness – up to 30 days each year, or throughout the time the child is hospitalised.
• For urgent and essential assistance to the employee’s spouse or to whom he/she is legally living with – up to 15 days
• To be present at the school attended by the worker’s child – up to four hours, every three months, per child.
• If the employee is also part of a legal workers’ representation organisation.
• If an employee is seeking to be elected for a public office.
• Time authorised or approved by the employer.
This legal framework is mandatory and it cannot be changed by any collective labour regulation or individual work contract.
An exception is made for absences from work of those who are also part of an employees’ representation structure, but only if those are more advantageous to the employee.
2. Proper communication
If the employee has advance knowledge that he/she will have to be absent from work, he/she has to give the employer prior notice of five days.
If the absence from work is caused by an unexpected event, the employee must inform the employer as soon as possible or the absence from work could be viewed as unjustified by the employer.
The employer can ask the employee to present legal documents that prove the reasons invoked to justify the absence from work within 15 days from the employee’s communication.
To have a justified or unjustified absence from work has important consequences, namely with respect to losing payment.
All unjustified absences from work are not paid, plus ones authorised or approved by the employer.
Also, if the worker receives any payment from the Social Security for being ill or for having an accident, the employer does not have to pay for the absent days.
Since one of the most important obligations of the worker is to be assiduous, if he/she has five consecutive or 10 non-consecutive unjustified absences from work in a year, the employer is allowed to start a disciplinary procedure against the employee in order to get the work contract terminated.
The above-mentioned legal framework is applicable to work contracts agreed under Portuguese Law, even if one or both parties are from abroad.
There are other specific reasons to be justifiably absent from work, such as the ones which have parental motives, but those will be analysed in our next legal article.
Dr Eduardo Serra Jorge is founding member, senior partner and CEO of lawyers firm Eduardo Serra Jorge & Maria José Garcia – Sociedade de Advogados, R.L., created in 1987. He can be contacted at his Faro office at Gaveto das Ruas Pedro Nunes e José de Matos, 5 R/C, on telephone +351 289 829 326, Fax. +351 289 829 327 or email [email protected] Alternatively, please visit www.esjmjgadvogados.com