Types of dismissal: see the 6 main ones and when each one applies

Understanding the types of dismissal is fundamental to choosing the right method when dismissing an employee and understanding the rights and duties associated with each situation.

In the workplace, especially in HR departments, questions arise about issues such as prior notice and FGTS. Therefore, being well-informed on the subject can facilitate a process as delicate as dismissal.

So, if you have any doubts on the subject, read on! In this article, we're going to talk about the types of dismissal, when to apply each type, the main reasons and how it works according to the CLT. Check it out!

What are the types of dismissal?

The Consolidation of Labor Laws (CLT) provides for five main types of contractual termination. These are

• dismissal without just cause;
• dismissal for just cause;
• resignation;
• consensual dismissal;
• indirect dismissal.

Each of these modalities has specific rules that affect termination rights and other legal benefits. Check them out!

1. Dismissal for cause

Dismissal for just cause occurs when an employee commits serious misconduct and motivates the employer to terminate the employment relationship abruptly. This type of dismissal is provided for in the CLT and includes various infractions.

When an employee is dismissed for just cause, he or she loses the right to various benefits and receives only the balance of wages, proportional vacation pay (if any) and the proportional 13th salary.

It is crucial that the company has proof of the misconduct to avoid future labor lawsuits.

2. Dismissal without cause

Dismissal without cause occurs when a company chooses to dismiss an employee without any serious misconduct on their part. The reasons for this type of dismissal can range from cost-cutting to internal restructuring.

Among the rights guaranteed to employees are:

• balance of wages for days worked;
• accrued and proportional vacation plus one third;
• Proportional 13th salary, prior notice (which can be worked or indemnified);
• access to the FGTS with a 40% fine on the amount;
• right to unemployment insurance.

3. Resignation

A resignation is when an employee voluntarily decides to end their employment contract with the company. In this scenario, the employee is not obliged to disclose their reasons for leaving.

Legally, employees are entitled to receive severance pay when they resign:

• salary balance;
• Proportional 13th salary;
• vacation pay and proportional vacation pay plus one third.

However, the employee is not entitled to unemployment insurance, withdrawal of the FGTS or the 40% fine on the FGTS. If they choose not to serve the notice period, they may also have to compensate the company.

4. Consensual dismissal (or agreement)

Consensual dismissal occurs when the employer and employee mutually decide to end the employment relationship.

In this type of agreement, the employee receives an intermediate amount between what they would receive in a resignation and a dismissal without just cause. Thus, in a consensual agreement, the employee is entitled to:

• salary balance;
• Proportional 13th salary;
• 50% of the value of the notice period;
• 20% FGTS fine;
• prorated vacation pay with an additional one-third.

In addition, you can withdraw up to 80% of your FGTS balance, but you are not entitled to unemployment insurance.

This type of dismissal offers benefits for both parties. It avoids labor disputes and allows for a smoother job transition for the employee, while minimizing termination costs for the employer.

5. Indirect dismissal

Indirect dismissal is a type of termination in which the employee decides to end the employment relationship due to serious faults committed by the company. This type of dismissal is provided for by the CLT and occurs when the conditions offered by the employer make it untenable to continue working.

Situations that can lead to indirect dismissal are:

• bullying;
• non-payment of overtime;
• inadequate working conditions;
• frequent delays in the payment of salaries;
• any other serious violation of labor rights.

When opting for this modality, the worker goes to the Labor Court to demonstrate the employer's faults and, if proven, is entitled to all the benefits as if it were a dismissal without just cause.

6. Collective dismissal

Collective redundancy occurs when a company decides to lay off a significant number of employees at the same time. This type of dismissal can be motivated by various reasons, such as financial crises or internal restructuring.

Legally, collective dismissal processes must respect the same labor rights guaranteed in individual dismissals.

In this type of dismissal, it is important that the company maintains clear, humanized communication and offers the necessary support and guidance to the affected employees during this transition.

When to apply each type of dismissal?

The application of each type of dismissal depends fundamentally on the circumstances involving both the company and the employee.

Consensual dismissal is an option when the parties agree to end the contract. This allows the employee to access part of their labor rights and the company to save on some financial obligations.

Unfair dismissal, on the other hand, applies when there is no specific reason for the termination, but the company chooses to end the employment relationship. This guarantees the employee all the rights provided for by law.

On the other hand, dismissal for just cause is reserved for cases in which the employee commits serious misconduct under the CLT. It therefore requires the company to have concrete proof of these actions in order to avoid future litigation.

Therefore, choosing the appropriate type of dismissal requires a careful analysis of the circumstances and objectives of the parties involved, always in compliance with current labor legislation.

What are the main reasons for dismissal for just cause?

Dismissal for just cause occurs when the employee commits infractions considered serious, which are explicit in article 482 of the CLT. The main reasons for this type of dismissal include:

• carelessness;
• acts of improbity;
• criminal conviction;
• job abandonment;
• drunkenness on duty;
• violation of company secrets;
• act of indiscipline or insubordination;
• incontinence of conduct or misconduct;
• habitual negotiation without the employer's permission;
• physical or verbal aggression in the workplace.

Each of these situations requires concrete proof on the part of the company to justify termination for just cause, ensuring that the decision can be defended in any legal disputes.

How does dismissal work under the CLT?

Dismissal under the CLT involves a number of stages. Firstly, the process begins with the notice, which can be given by the employer or requested by the employee by means of a letter.

Once the notice has been given, the notice period is established, usually 30 days, and can be worked or indemnified. The documentation required to terminate the contract includes:

• Termination of Employment Contract (TRCT);
• updates to the Work and Social Security Card (CTPS);
• FGTS and unemployment insurance withdrawal forms, when applicable.

Another essential step is the dismissal examination, which must be carried out to ensure the employee's health conditions at the time of dismissal. Finally, severance pay must be paid within 10 days of the termination date.

So, have you understood all the types of dismissal described here? To deepen your knowledge and discover more relevant content for the Human Resources area, follow Alymente on social media: Instagram, Facebook, and LinkedIn. 

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