Monique Vieira Lessa
Lawyer at Marcos Martins Advogados
It is true that the country’s legal system only allows an employee dismissed without just cause to be reinstated 90 days after the date of dismissal.
This guideline was established with the advent of Ordinance 384/92, issued by the now defunct Ministry of Labor, with the aim of preventing fraudulent dismissals, a practice that was very common in labor relations, the purpose of which was often to circumvent the principle of wage irreducibility by rehiring the employee for a lower salary or so that the employee could access the guarantee fund.
When the aforementioned ordinance was in force, rehiring for a period of less than 90 days was presumed to be fraud, with the consequence of recognizing the uniqueness of contracts.
However, with the implementation of isolation measures throughout the country, due to the rampant spread of COVID-19, the business sector was hit hard, as many companies were forced to stop their activities.
Fatally, as a result of this interruption in production, employment relations suffered a major impact, so it was necessary to enact government measures that made some labor rights more flexible in order to preserve jobs.
Despite the government ‘s efforts , many companies were unable to sustain employment, which led to around 1,487,000 layoffs across the country.
However, with the resumption of economic activities in several locations in Brazil, and in view of the need to allow people to return to work, the Ministry of Economy authorized, through Ordinance 16.655/2020 of 14/07/2020, that companies that dismiss workers without just cause during the period that the state of public calamity lasts, can rehire these professionals without the need to observe the minimum period of 90 days.
However, once the state of calamity has ended, which is expected to be until December 31st of this year, the Ordinance loses its validity, and the understanding set out in Ordinance 384/1992 will once again apply.
The effects of the new ordinance are retroactive from March 20, and rehiring will only be valid if the same terms of the previous contract are maintained, unless a collective bargaining agreement provides for this. Therefore, rehiring is possible as long as the requirements set out in the ordinance are met, and it is even possible to rehire the employee at a lower salary, as long as collective bargaining takes place.
