Marília Silva de Melo
Lawyer at Marcos Martins Advogados
According to the ranking of the most recurrent issues in the TST up to July of this year, the fine provided for in article 477, paragraph 8 of the CLT is in 15th place, with 6,362 lawsuits filed with this request, i.e. the number of lawsuits filed requesting payment of the aforementioned fine in article 477 is significant.
Article 477, paragraph 6 of the CLT stipulates the deadline for payment of severance pay, and if the stipulations are not complied with, paragraph 8 provides for the application of a fine in the amount corresponding to 01 of the employee’s salary. However, the wording of this article was substantially altered by Law 13.467/2017 – the Labor Reform, which changed the deadline for payment of severance pay.
The original wording of §6 of article 477 provided that the deadline for payment of severance pay would occur in 2 ways, and in the case of dismissal with prior notice worked, payment should occur on the 1st working day following the end of the employment contract, that is, one day after the prior notice was served. If the notice was not given, or if the notice was paid in lieu of notice, the deadline for payment would be the 10th day after the notice was given.
After Law 13.467/2017 came into force, article 477 was reworded to include a new deadline for payment, and the labor reform unified the deadline for both indemnified and worked notice.
“Paragraph 6 – The delivery to the employee of documents proving the communication of the termination of the contract to the competent bodies, as well as the payment of the amounts contained in the termination instrument or discharge receipt, must be made within ten days of the end of the contract.”
Thus, since November 11, 2017, severance pay must be paid within 10 days of the end of the employment contract, both in the case of indemnified or worked notice.
At this point, it is necessary to clarify when the employment contract is terminated, as there is an obvious danger of the fine discussed here.
The employment contract is only terminated once the prior notice has been given and the worker’s CTPS has been duly annotated. As a rule, the notice period is 30 days, but Law 12.506/2011 stipulates that for each year the employee has worked, 3 indemnified days are added to their notice period, up to a limit of 60 days, totaling a maximum of 90 days’ notice.
It is in this logic that the danger lies, given that, as already explained, the notice period projects onto the employment contract, extinguishing the contract only after it has ended, i.e. the 10-day period for payment of severance pay will only apply after the end of the notice period, even if the employee has 90 days’ unpaid notice, and the payment period may then be 100 days.
It can thus be seen that even though the legislator has unified the deadline for payment of severance pay, by stating that the deadline falls after the end of the employment contract, he has created a variety of deadlines depending on the length of service of each employee, since this deadline can vary from 40 days to 100 days, when the prior notice is only 30 days or has the legal additions of 3 days for each year of service.
This variant is, if not the biggest cause of the fine provided for in paragraph 8 of article 477, which provides for the payment of 01 salary to the employee as a penalty in the event of late payment.
§ Paragraph 8 – Failure to comply with the provisions of paragraph 6 of this article will subject the offender to a fine of 160 BTN per worker, as well as payment of the fine in favor of the employee, in an amount equivalent to their salary, duly adjusted by the BTN variation index, except when the worker demonstrably causes the delay”.
It is important to note that this fine is only levied in cases where severance pay is paid out of time, and the Superior Labor Court has already ruled that the fine is not levied in cases where payment is made on time, but there is a delay in approval by the union or Ministry of Labor, noting that this requirement is currently waived.
Thus, even though the legislator is trying to unify the deadline for payment of severance pay, for each worker there will be a different deadline, stipulated according to their length of service with the company, generating prior notices with different deadlines. However, it should be noted that the variant of 40 to 100 days for payment gives the employer financial leeway to make the payment due, and can make the payment within a longer period without incurring the fine provided for in §8 of article 477 of the CLT.
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