Base date dismissal: right to additional severance pay
In this article we tackle a relatively confusing but important topic in the life of any CLT worker: the base date dismissal, i.e. making official a date for dismissing an employee, how this affects your rights and the company's obligations.
How long before the base date can you sack an employee? Can you sack an employee on the base date? What is the base date for dismissal? We answer these and other questions on the subject of "base date dismissal", such as how prior notice affects the right to additional severance pay or if there was just cause during the period, what does that mean? We've prepared this article to serve as a guide and support to expand your labour and accounting knowledge.
What is a base date?
The base date is the period when unions and employers meet to decide on the terms of collective agreements ( collective bargaining agreement). It is at this time that employees - represented by unions - can claim salary adjustments, changes to clauses and everything else that involves the mandatory minimum for their category.
Base dates vary from professional category to category, but always fall on the first day of each month. This date marks the beginning of the right acquired by the workers in the agreement, i.e. regardless of the date an agreement is reached, it will always be valid from the base date and the company must comply with the agreement retroactively. For example, if the company and union reach an agreement in June, but the base date is 1 May, then the company will have to pay the adjustments from May onwards.
The concept originated on 1st May 1943, created by the CLT.
What is a base date month?
The month during which trade unions and companies meet to decide on the terms of collective agreements. For example, if a category meets with companies in June, its base date is 1 June, so the base date month will be June.
What is a CLT base date?
CLT base date or just base date is the period when employers and employees, through their companies and unions, "sit down" together to discuss the current collective agreement. Each professional category has a different base date, but always on the same day: the first day of the month in which the agreement takes place.
Dismissal before the base date
Not just any dismissal before the base date entitles you to additional severance pay.
Additional indemnity for dismissal before the base date
Article 9 of Law 7.238/84, which regulates the FGTS, states that employees dismissed in the thirty days before the base date of the category, without just cause, are entitled to an additional indemnity, equivalent to one monthly salary.
Article 9 of the law states:
"Art 9 - Employees dismissed without just cause in the 30 (thirty) day period preceding the date of their salary adjustment will be entitled to an additional indemnity equivalent to one monthly salary, whether or not they have opted for the Severance Indemnity Fund (FGTS)."
Therefore, it is clear that if the dismissal occurs, without just cause, within the three months preceding the base date, the employee will be entitled to an additional indemnity equivalent to one monthly salary.
©️ Folha de S. Paulo
©️ Folha de S. Paulo
What is trintidium?
It's the 30-day period preceding the base date, in the context of labour law. From the dictionary: a period of 30 days.
Prior notice excludes the right to indemnity
If the notice period extends beyond the base date, the employee will not be entitled to the additional indemnity provided for in Article 9 of Law 7.238/84, mentioned above.
For example, an employee receives notice of dismissal on 30 April, one day before the base date for their category, which is 1 May. The contract, with the notice period, will effectively end 30 days later, that is, on 30 May; practically a month after the base date.
Therefore, a worker who is dismissed when the notice period, and consequently the end of the employment contract, passes the base date, will not be entitled to additional compensation.
Case law already exists for the above situation.
Technology can help
For years there has been accounting software that anticipates and calculates various situations and scenarios with regard to labour and tax obligations. In recent years, with the arrival of "the cloud", various systems have been created which work 100% online and are very competitively priced, especially if you take into account the benefits they bring.
Search, find and compare solutions that can help your company minimise labour and tax risks, find accounting systems.
Conclusion
Base date dismissal is a concept particular to labour law. In some situations, managers can make use of this knowledge to avoid unnecessary expenditure on additional labour obligations. Obviously, there are times that don't allow for choices or "best times"; it's up to each manager and entrepreneur to make their own decision.
Knowing the law and your obligations is important, but the support of accounting software can greatly minimise your dependence on this knowledge. After all, the manager and entrepreneur must focus on strategic activities for the company's growth and development.
Article translated from Portuguese