Judicial challenge of dismissal proceedings: The obligation to submit the disciplinary proceedings

The Judgment rendered by the STJ within the scope of a judicial challenge to the regularity and lawfulness of a dismissal filed by the employee against the employer.

At the time of presenting its statement of grounds (motivating pleading), the employer submitted the disciplinary dossier but did not include the final report of the preliminary inquiry.

Thus, the question placed before the STJ for assessment was whether the failure to submit this report constitutes a breach of the obligation to submit the complete disciplinary dossier, which, under the terms of paragraph 3 of Article 98-J of the Labour Procedure Code (CPT), would determine the immediate declaration of the unlawfulness of the dismissal.

The preliminary inquiry, which precedes the initiation of disciplinary proceedings, aims to allow the employer, upon becoming aware of facts that may constitute disciplinary offenses, to carry out internal investigative acts in order to determine whether such facts warrant the initiation of a disciplinary procedure.

Usually, the preliminary inquiry procedure consists of conducting evidence-gathering measures (both documentary and witness evidence) and is concluded with the drafting of a final report that analyses the evidence gathered and recommends whether or not to initiate disciplinary proceedings.

In the case under analysis, the employee, upon presenting their statement of defense, argued the unlawfulness of the dismissal, alleging the incompleteness of the dossier, namely because the final report of the preliminary inquiry procedure had not been attached.

The Court of First Instance issued a summary judgment (saneador-sentença) declaring the immediate unlawfulness of the dismissal, applying the penalty of Article 98-J, no. 3, of the CPT.

The Court of Appeal (Tribunal da Relação) overturned this decision, considering it disproportionate.

Consequently, the STJ was called upon to decide, as a court of last instance, whether the failure to submit the final report of a preliminary inquiry automatically triggers the penalty of immediate unlawfulness of the dismissal due to the failure to present the disciplinary dossier.

In order to substantiate the request for an immediate declaration of the unlawfulness of the dismissal, the employee presented the following arguments:

1. Article 98-J, no. 3, of the CPT imposes the presentation in court of the entire disciplinary dossier, including the preliminary inquiry procedure, and it is not up to the employer to select or expunge documents from the actual file as it was processed;
2. The final report of the preliminary inquiry is a crucial document for the organization of their defense, given that it substantiated the decision to initiate disciplinary proceedings, the application of preventive suspension, and the drafting of the statement of charges (nota de culpa);
3. The failure to submit the final report of the preliminary inquiry is equivalent to the failure to present the complete disciplinary dossier, and the severe consequence provided for in the aforementioned Article 98-J, no. 3, of the CPT should apply.

In turn, the employer invoked the following arguments to sustain that the dismissal should not be declared unlawful:

1. The non-inclusion of the final report of the preliminary inquiry procedure was due to a mere involuntary oversight, resulting from the considerable volume of documents in the disciplinary dossier;
2. The absence of this document did not affect the exercise of the employee’s right of defense or the court’s ability to scrutinize compliance with procedural requirements;
3. The facts imputed in the statement of charges were clear, precise, and intelligible, providing the defendant with all the conditions to defend themselves adequately.

The STJ, unanimously, dismissed the appeal filed by the employee and, consequently, agreed with the position defended by the employer.

To substantiate its decision, the STJ relied on the following legal grounds:

1. The requirement for the immediate and full submission of the disciplinary dossier upon presentation of the statement of grounds for dismissal aims at two objectives: (i) ensuring the swiftness of the challenge process (avoiding dilatory maneuvers and allowing for a quick decision); and (ii) guaranteeing that the employee has full access to the pieces that support the statement of charges and the motivating pleading, in order to organize their legal defense within the judicial process;
2. The rules of interpretation of legal norms must avoid the creation of formal obligations devoid of any substantive value. Thus, when the lack of a document does not stem from a strict statutory command, the extreme sanction of immediate unlawfulness of the dismissal is only justified if the omission substantially prejudices the defense or the court’s scrutiny;
3. According to Article 352 of the Labour Code (CT), the preliminary inquiry constitutes an option (and not an obligation) of the employer to clarify the circumstances of the facts. The law does not regulate its formalities, nor does it prescribe the mandatory issuance of a final report;
4. In the analysis of the specific case, the STJ concluded that the infractions imputed to the employee were perfectly comprehensible and lacked any special technical complexity. Furthermore, and even in the absence of the final report, all the records of witness examinations carried out during the preliminary inquiry were submitted to the judicial process, providing the employee with the necessary knowledge to prepare their defense. Therefore, the omission of the final report of the preliminary inquiry did not prejudice the employee’s defense guarantees;
5. In light of all the above, the STJ understood that the immediate declaration of the unlawfulness of a dismissal due to the absence of the final report of the preliminary inquiry would be manifestly inappropriate and in violation of the principle of proportionality.

Even though in this specific case the Supreme Court of Justice understood that the lack of the final report of the preliminary inquiry is not of sufficient relevance to determine the immediate declaration of the unlawfulness of the dismissal, this Judgment highlights the importance and relevance of employers, within the scope of disciplinary proceedings aiming at dismissal, ensuring a rigorous and chronological organization of all acts performed in the disciplinary procedure and in the preliminary inquiry procedure that precedes it.

In fact, and although in the case under analysis the STJ considered that the absence of the final report of the preliminary inquiry did not prejudice the employee’s legal defense guarantees, in other cases where greater factual complexity is found, the lack of this document may be interpreted in a way that leads to the declaration of the unlawfulness of the dismissal, without an opportunity to assess the gravity of the disciplinary offenses imputed to the employee.

The Labour Law Department of Belzuz Abogados, S.L.P. – Branch in Portugal has experienced and qualified professionals to inform and clarify on recent legislative changes, as well as on matters related to the initiation and instruction of disciplinary proceedings and judicial processes challenging dismissals.