Economics/Business

Employee Reinstatement/when takes place/How to proceed/Top questions

The reinstatement of an employee is necessary when a wrongful dismissal occurs and is annulled. In addition to bureaucratic issues, the company must take care of the climate and the reintegration of the worker into its team.

Do you know what happens when a company makes a wrongful dismissal? Depending on the situation, the Labor Court may determine an employee reintegration process , returning your job.

When it acts following the labor legislation to the letter, a company rarely goes through a situation like this. 

The legal text, however, presents many details and possible mistakes that may occur.

That’s why we made this post to tell you everything you need to know about this reintegration.

What is employee reinstatement?

Employee reintegration is the process that consists of returning the job to the dismissed worker with all the contractual guarantees that existed before the termination of the employment contract.

This means that the professional returns to the same position and function, with the same benefits and advantages. 

Even the period in which the worker was on leave is counted as part of the length of service.

This is because the reinstatement indicates that the dismissal previously carried out is understood as null.

It is important to be clear that this reintegration is not the same as an employee who left the company and, after a period, returned for a new opportunity. 

It is also not the same as that of a professional who returns to work after a period of absence from the INSS .

When we talk about reinstatement of an employee, we refer to a situation in which the company opted for dismissal. 

However, in this case, the professional sought his right to remain in his job , usually with the intervention of the Justice. It doesn’t happen without reason.

The determination of the Labor Court takes place when it is understood that the dismissal did not have valid criteria. That is, it occurred indiscriminately, for no apparent reason.

It is also necessary to say that before the situation reaches the hands of judges, the employer himself may realize that he has made a mistake and forward the reinstatement of the employee dismissed in improper circumstances.

When employee reinstatement takes place

Put this way, you are likely to be in doubt about when or under what circumstances the court may order the reinstatement of employees in your company.

That’s because, as you may already know, our legislation dictates that employers do not need justification to fire an employee without cause .

In its text, article 2 of the CLT determines the condition of employer as follows: 

“Employer is considered to be a company, individual or collective, which, assuming the risks of economic activity, admits, pays and directs the personal provision of services”.

The legal interpretation of this article leads us to speak of something called potestative law .

This would be an absolute right that only depends on the will of those who impose it. In labor relations, who holds this power is the employer.

With this, what the labor legislation guarantees to employers is the right to make admissions, dismissals or change the structure of a company.

All this without taking into account the wishes of the other party, that is, the employees.

It turns out that this same legislation was created mainly to balance labor relations.

Therefore, the objective was to protect the worker from measures considered harmful or abusive. 

Thus, there are situations in which the CLT determines that the dismissal of an employee is not legal .

If this determination is not respected, the employer is liable to face a lawsuit brought by the worker to guarantee his rights. Below, you can see in which situations this can happen.

Before, we also add that dismissals caused by disproportionate punishments to the faults that have been committed by the employee can also be judicially reversed.

When the employee cannot be fired

Does the possibility of having to face employee reintegration seem distant for you and your company? At best, it really should be that way, but the process doesn’t exist without reason.

Imagine if, for example, your company closes a trial contract with a female worker and she becomes pregnant during the period determined for this test.

Experience contracts have a maximum duration of 90 days and can be terminated earlier if the company realizes that the professional is not suitable for the vacancy or if the worker himself decides he does not want to continue.

To better understand what we’re talking about, how about checking out the article about dismissal during the probation period ?

Well then. If an employee in probation becomes pregnant, by law, she cannot be fired or resign even if there was a pre-stipulated date for the end of the contract.

With this example, do you understand how a situation that leads to reintegration can be guided by details? Check out some details and other cases below.

pregnancy or adoption

Taking as a hook the example given about the employee who became pregnant during the probation period, let’s talk about pregnancy in any context. 

From now on, emphasizing that the stability rule also includes adopting women.

It is article 10 of the Transitional Constitutional Provisions Act, of the Federal Constitution, which determines that the dismissal of “the pregnant employee, from the confirmation of the pregnancy until five months after delivery ” is prohibited, arbitrarily or without just cause.

The purpose of the law is to protect motherhood and childhood. Therefore, stability becomes effective as soon as the employee discovers the pregnancy.

The legal determination also appears in article 391-A of the CLT and also includes that stability “applies to the adopting employee who has been granted provisional custody for adoption purposes.”

natural abortion

Those who happen to lose their babies naturally, that is, go through involuntary abortions, are not entitled to stability . 

However, the law guarantees the right to two weeks of rest due to a miscarriage.

exception to the rule

It must be said that an employer can dismiss an employee who is pregnant or who is within the period of stability after childbirth without having to worry about the possibility of the employee’s reinstatement.

If the employer decides to terminate the employee according to its own criteria, it must pay her compensation corresponding to all the salaries to which she would be entitled until the end of her tenure. 

This must also include severance pay corresponding to any and all dismissals.

Work accident or occupational disease

In order not to have to deal with the reintegration of employees, companies also need to pay attention to cases involving the health of their workers.

The guarantee of stability exists when the worker suffers an accident at the workplace or develops an occupational disease , that is, related to his professional activity.

When an accident occurs or an illness develops, the worker may be entitled to sick pay paid by the INSS and to a leave of absence. 

During the period of leave, there are no layoffs. Upon returning to their activities, the employee has stability for 12 months .

For these 12 months back to work, the legislation provides that the professional has the right to return to the same function or another that is compatible with their situation.

This is in the case of limitations that have arisen as a result of the accident or illness.

union leader employee

Another situation that protects professionals from dismissal and that can lead to the reinstatement of employees is dismissal.

In this case, we are considering dismissals by decision of the company, of workers who are directors of union organizations.

When a worker assumes this position in the union, he is entitled to job stability for up to one year after the end of his term

Pre-retirement employee

The reintegration of an employee in a pre-retirement situation may end up happening, mainly because not all companies are able to monitor the situation of the workers who form their staff so closely.

In an ideal scenario, the professional himself should be aware of this to communicate to the employer that his retirement is approaching. 

Before implementing the dismissal of employees of retirement age, however, it is up to HR to better verify the situation.

It is important to know that there is no law that guarantees stability in pre-retirement, this being a determination of the Collective Agreement of the category.

In general, there is no rule that defines the time that corresponds to pre-retirement, which can vary between six, 12 and 24 months. 

Therefore, it is always essential to check what the Convention determines to respect this stability.

CIPA members

To avoid a process that leads to the reinstatement of an employee, your company also needs to pay attention to the right to temporary stability granted to members of the Internal Commission for Accident Prevention (CIPA).

According to guidelines from the Ministry of Labor and Employment (MTE), CIPA is a mandatory body and must be composed of members chosen by the company and employees.

exception to the rule

Employees who are part of the CIPA can be dismissed, without just cause and without risk of reinstatement by order of Justice, due to the end of the workplace.

This is because the activities of the Commission are directly linked to the establishment where the work activity is carried out. 

If it closes, the existence of CIPA ceases to make sense, which justifies the end of stability.

Attention to the Collective Agreement

We mentioned the Collective Bargaining Agreement when talking specifically about the stability of pre-retirement employees.

However, we remind you that these documents prevail over the CLT. The same goes for Collective Agreements.

With this, it is essential that employers are aware of the determinations signed with the labor union. 

In this way, none of the stability rules will be violated.

Pay attention to the minimum quotas

Also, it is worth remembering that companies may have a legal obligation to respect minimum quotas, such as the one related to the hiring of PCDs .

This is because the company may need to forward a new hire before completing a dismissal to remain in compliance with the laws, respecting the indirect guarantee of employment due to quotas.

Attention to just cause

Finally, we warn that the reinstatement of an employee can only happen in arbitrary dismissals without just cause .

When the employer proves the reason for dismissal following the hypotheses presented in article 482 of the CLT, he is protected even in situations where stability should be guaranteed.

This understanding only does not apply if the employee can prove that the reason given for dismissal was forged by the employer or that it is a disproportionate punishment, as mentioned above.

How to proceed with reinstatement

Dealing with an employee reintegration process can be a challenge, because we are talking about a situation in which the company wanted to terminate the relationship, forwarded the process, but had to go back by court order.

As a result, HR’s people management needs to look for ways to restore a good climate, but we’ll talk more about that later. 

For now, let’s focus on the legal obligations that a company has in this situation.

Obligations relating to reinstatement

At the beginning of the text, we said that the process of reintegrating employees leads to the return of employment and all its contractual guarantees. 

As a result, the company has the following obligations:

  • make the payment of the full remuneration of the professional related to the time of his leave, with correction. Something that includes salaries, benefits, awards and others);
  • perform the collection of all taxes related to this remuneration , such as INSS, FGTS and Income Tax;
  • grant salary readjustment if a change in values ​​has occurred during the professional’s absence;
  • count the period of leave as working time for the purpose of vacations and 13th salary ;
  • cancel the notice of dismissal in the Work Card . Something that demands that new information be included in the “general notes” part.

On this page, it must be stated that the annulment was due to the reinstatement of an employee, indicating the page where the undue dismissal is located.

Also, it is important that, on the “employment contract” page, next to the date, a note is added directing to the “general notes” page.

Heads up! It should not be stated that the reinstatement took place by order of Justice, because this observation may lead to a lawsuit for moral damages brought by the worker.

About the employment contract

In an employee reinstatement, the company does not need to make a new employment contract . 

This is because the annotations that already exist on the form or on the log book sheet remain valid.

It is worth remembering that the process of reinstatement results in the annulment of the dismissal . Thus, the contract that previously existed is back in force.

About the amounts received on termination

In a dismissal process , it is up to the Personnel Department to make the calculations for the payment of severance pay. 

The amount must be transferred to the worker within a period of up to 10 days, and any delay may result in a fine.

As a result, it is very likely that the funds will be duly paid before, with or without the intervention of the Labor Court, the employee’s reinstatement takes place.

Given this scenario, what we have is that the company paid amounts related to the dismissal, which, in turn, was annulled. 

In general, what happens is a compensation agreement signed between the parties or by court order for the “return” of this money.

As you may be imagining, the idea is that the amount paid is deducted from the salary of the reinstated employee.

Service Time Guarantee Fund

Labor legislation does not provide specific rules on the FGTS in this case.

What is the obligation of whom in reintegration

It became clear that the worker has to understand his responsibilities. In particular, those relating to the return of values ​​in a situation of employee restitution.

However, it is necessary to say that it is the employer’s duty to inform and guide the reinstated worker about the process and what is up to each of the parties.

The role of HR in reintegration

As promised, the time has come to talk about people management and the role of HR in an employee reintegration process.

When a professional is terminated from the company, that is, his contract is terminated, the others find out. 

With this, both the circumstances of his departure and his return can generate gossip, judgments and assumptions.

The situation can affect both the employer brand , that is, how employees see the company and the employer, and it can affect the team’s relationship with the reinstated worker.

All this indicates that HR needs to closely monitor employee reintegration to avoid compromising the organizational climate and work relationships.

The idea is to seek a scenario in which none of the parties, employer, reinstated employee and colleagues, feel uncomfortable.

Thus, together with the leadership, HR needs to think about how to conduct the return of the reinstated employee to ensure that discrimination does not occur. 

Otherwise, with the relationships and climate affected, productivity, general motivation and achievement of results can be compromised.

It is worth remembering that the professional knows that the company had opted for his dismissal. 

This understanding can lead to fear of becoming persona non grata in the work environment, of suffering retaliation and other undue punitive actions.

With all this in mind, it may be important for HR to also provide psychosocial support to the employee who returns to his or her job. 

The idea is to offer assistance so that the moment, which tends to be delicate, does not impact workers’ morale and, consequently, their performance.

Main questions on the subject

At this point, you have enough information to conduct an employee reinstatement process at your company. 

However, we know that there are issues that may arise and we will try to address the main ones.

Keep in mind that these are doubts that can come from both employers and workers and, in any case, it is interesting that HR is prepared to give the appropriate guidance.

How long after dismissal can the worker request reinstatement?

Legally, there is no deadline for a worker to apply for reinstatement. But that doesn’t mean it’s easy to do it anytime.

The dismissal exam is a process that a professional must go through when their employment contract is terminated. 

Often, it is in this examination that the doctor identifies a pregnancy or occupational disease that guarantees stability and, consequently, leads to the reintegration of an employee.

However, an occupational disease is not always identified immediately on a daily basis. 

Some people only discover a problem when taking an entrance exam for a new job, for example.

When delay occurs, regardless of the reason, the situation is evaluated before leading to a decision . 

The assessment takes place to establish whether or not the worker is acting in bad faith and whether the disease is, in fact, related to the activity previously performed.

This is because for the reintegration of an employee to occur, it is necessary to establish that the disease was already present at the time of dismissal.

When the reason for stability is different, as is the case with workers who are part of the CIPA, the sooner the situation is raised and the request for reinstatement is made, the better.

Is there a job guarantee after integration? how long?

Each case is different. When there is an occupational disease, the guarantee of stability after the reintegration of an employee is one year from the end of the sickness benefit.

If the situation does not involve receiving an INSS benefit, it may be possible that stability is granted one year after the end of treatment.

Still, it is necessary to consider what guarantees stability and what, consequently, led to the reintegration of an employee. 

If we are talking about a worker who is a union leader, for example, the job guarantee is for up to one year after the end of his term, as mentioned earlier.

Is occupational disease without disability subject to reinstatement?

Not every occupational disease is disabling. This means that the professional may have the chance to continue working while performing the treatment. 

Thus, it does not go through leave from work and it is precisely the return of leave by the INSS that guarantees stability.

Precedent 378 of the Superior Labor Court (TST) determines that there is no need for incapacity to guarantee stability, and the existence of the disease is sufficient for that.

However, many court decisions deny reinstatement for an employee who is fired while dealing with an occupational illness without time off work. Thus, the decision may vary from judge to judge.

In any case, it should be noted that if the illness has nothing to do with work, a request for reinstatement is not really appropriate. 

The only exception is if the employee is able to show that the dismissal was due to discrimination due to a “serious illness” such as depression, leukemia or AIDS.

Does a non-work-related momentary disability entitle to reinstatement?

If, at the time of dismissal, the worker was away from his activities due to an accident or non-occupational illness, the employee’s reinstatement is still possible.

This is because the dismissal that takes place during the leave characterizes interruption or suspension of the contract . 

In these situations, a dismissal cannot occur and, therefore, would need to be annulled.

Just so you know, here are examples of interruption in the employment contract:

  • vacations, paid weekly rest (DSR) and holidays;
  • leave due to work accident or occupational disease up to the 15th day;
  • maternity leave and paid leave;
  • removals provided for in article 473 of the CLT;
  • period in which there is no service in the company, due to its fault or responsibility, in which case there is an obligation to pay remuneration and others.

Also, are examples of suspension of employment contract:

  • leave due to a work accident or occupational disease from the 16th day onwards;
  • leave due to disability retirement;
  • peaceful participation in strike;
  • election for union leadership position;
  • unpaid leave granted by the employer at the employee’s request to address private interests;
  • period of disciplinary suspension and others. Employee Reinstatement 

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