By Dr. Eduardo Serra Jorge
From February 1, 2013, under the new law Decreto-Lei 12/2013 (published on January 25), employees can now claim unemployment benefit where they agree to the cancellation of their work contract voluntarily; but only in situations where the cancellation is due to a raising of qualifications and improvement of skills in the workplace.
The new law establishes that such contract cancellations must be by mutual agreement, thereby enabling the employee to be considered as having ‘involuntary’ unemployment.
These conditions are not subject to those limits applied to other cancellations of contract by mutual agreement, based on motives that allow the use of collective redundancy (three workers or 25% of staff, in companies with less than 250 staff – or – 62 workers or 20% of staff, in companies with more than 250 staff).
As part of the new law, a company must ensure that there is a constant number of employees contracted to allow the granting of unemployment benefit through cancellation of a contract (by mutual agreement) within the technical staff. Meeting this criterion will allow for such contract cancellation to be considered as ‘involuntary’ unemployment.
Maintaining the number of those employed has to be completed before the end of the month after the cancellation of the work contract. The maintenance of the level of employment is considered verified by hiring a new member of staff, contracted without term and on a full time agreement, for a position that is of technical complexity, a greater level of responsibility or that requires a specific qualification.
In this way, the released workers may receive the unemployment benefit, even though they cancelled the contract by mutual agreement, provided that:
(i) the cancellation aims to strengthen the technical capacity of the company through an upgrade of the technical skills in that position (this means that the work post affected must demonstrate either technical complexity, a greater level of responsibility or presupposes a special level of trust); and
(ii) the company maintains the existing number of qualified workers.
This regime is conditioned to the following:
– The workers finishing and the workers to be hired to substitute them must be qualified workers (technical staff); their jobs must be of technical complexity, high level of responsibility or that require a special qualification.
– New employees brought in must be hired under a contract without term (which of course excludes contracts for a fixed period and the use of temporary work) and full time (which obviously excludes part-time workers).
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.
In his column, he addresses legal issues affecting foreign residents in Portugal.
Faro office at Gaveto das Ruas Pedro Nunes e José de Matos, 5 R/C
289 829 326 | www.esjmjgadvogados.com
