Discussions About the Possibility of the Court Charged with the Resolution of a Complaint Against the Disciplinary Termination of the Labor Contract to Replace This Penalty with a Lighter Punishment Stipulated by the Labor Code

Abstract

By Decision, 11/2013, the High Court of Justice upheld the appeal on points of law and determined that the court competent to resolve the appeal against the disciplinary sanction applied to the employee by the employer, finding that it is incorrectly individualized, can substitute it with another punishment. Therefore may appear the risk for a deed considered serious and punishable by disciplinary termination of employment contract by the internal rules prepared by the employer pursuant to Art. 242 point f of the Labor Code, to be singled out by different courts and sanctioned more lenient by replacing the sanction issued by the employer. The question is whether, considered as such by the court, the deed may be provided by internal rules as punishable by disciplinary termination of employment contract. Invested with an annulment request of a decision of disciplinary termination, the court cannot establish that there is a disproportion between the facts established by internal rules and the possibly pre-established sanctions by the employer, but will analyze, in terms of the solidity of the contested decision, if the applied sanction respects the proportionality between the deed committed and the consequences, given of course the other matters expressly stipulated by art. 250 of the Labor Code.