Marília Silva de Melo
Lawyer at Marcos Martins Advogados
Unjustified absences affect workers’ vacations. Labor legislation guarantees every worker the annual right to a period of vacation, without prejudice to pay. The Federal Constitution also guarantees, in addition to the vacation period, the addition of one third to the employee’s salary during this period.
However, the CLT lays down specific rules regarding the number of days of vacation for workers, especially when there are unjustified absences by the worker during the period of entitlement to vacation.
In order to understand which absences the employer can consider as unjustified for compensation in the vacation period, it is necessary to first understand what justified absences would be, i.e. those in which the worker does not show up for work and the company cannot deduct from their salary, not reflecting on the right to acquire the period and number of vacation days.
The CLT lists the specific cases in which absence is considered justified:
– those provided for in article 473 of the CLT (up to 2 consecutive days in the event of the death of a spouse, ascendant, descendant, sibling or person declared on the CTPS and social security;
– up to 03 consecutive days due to marriage; 1 day in the event of the birth of a child;
– 1 day every 12 months for voluntary blood donation;
– up to 02 consecutive days or not for voter registration;
– during the period of time in which you fulfill the requirements of military service;
– on the day you take entrance exams for higher education;
– for as long as necessary to appear in court;
– for as long as necessary to represent a trade union;
– up to 02 days to attend medical appointments and examinations during his wife’s gestational period;
– for 01 day to accompany a child to an appointment under the age of 06;
– up to 03 days for preventive cancer examinations);
– during the employee’s leave due to maternity or miscarriage; accident at work or illness certified by the INSS;
– absence which the company does not deduct from salary; during suspension to answer an administrative inquiry or pre-trial detention when there is an impronunciation or acquittal; and
– when there is no service.
Therefore, if any of the situations listed above occur, the company will not be able to deduct the employee’s salary, nor will these days not worked affect the employee’s vacation entitlement. However, if the employee is absent for any other reason, the company may consider it an unjustified absence and thus make the appropriate deductions.
With regard to unjustified absences, the CLT contains a list of days of unjustified absences that the worker may have within the one-year vacation period, and the days that he will actually have to take his vacation.
This exhaustive list can be found in article 130 of the CLT, which stipulates the vacation days due in the following proportions: 30 (thirty) calendar days, when there have been no more than 5 (five) absences from work; 24 (twenty-four) calendar days, when there have been 6 (six) to 14 (fourteen) absences; 18 (eighteen) calendar days, when there have been 15 (fifteen) to 23 (twenty-three) absences; 12 (twelve) calendar days, when there have been 24 (twenty-four) to 32 (thirty-two) absences.
Let’s see that it is not that the days of unjustified absences are deducted or compensated from the worker’s vacation period, because according to paragraph 1 of this article, such an attitude is completely forbidden. What the Labor Law guarantees is fair proportionality , since the company has already suffered from the worker’s absences during the acquisition year, and it is a measure of justice that the worker should enjoy his vacation proportionally if he exceeds the number of 5 unjustified absences per year.
Therefore, it is not up to the employer to deduct an employee’s absences from their vacations, as the deductions allowed are already regulated by law.
The Labor Law also regulates the cases in which the employee is not entitled to vacation, i.e. the hypotheses in which the employee will not enjoy any vacation days if the following circumstances occur within their acquisition period: the employee leaves their job and is not reinstated within 60 days; they remain on leave with pay for more than 30 days; they stop working with pay for more than 30 days due to a total or partial stoppage of the company’s services; they receive accident or sickness benefit from the INSS for more than 6 months, even if discontinuous.
