I was unfairly fired for cause in Brazil: how to challenge it

If you believe your dismissal for cause (justa causa) was unfair, you can challenge it in the Brazilian Labor Court. The one who has to prove the reason is the employer, not you. If the court finds that the dismissal for cause does not hold up, the dismissal is treated as a dismissal without cause, and the company has to pay the amounts it failed to pay: notice period pay, the 40% penalty on the FGTS (Brazil’s severance fund that employers deposit into monthly), proportional vacation pay and proportional 13th salary, and the release of the FGTS and of unemployment insurance. The deadline to file the lawsuit is 2 years after the dismissal.

What dismissal for cause is

It is a dismissal due to serious misconduct by the employee. Brazilian law lists which kinds of misconduct can lead to it (CLT, Brazil’s Consolidated Labor Laws, art. 482). Among those most often used by companies:

Negligence (desídia): repeated carelessness at work, such as frequent lateness and absences or habitually poor work.
Indiscipline or insubordination: breaking the company’s general rules or a direct order from the boss.
Job abandonment: consecutive unjustified absences, with the intention of not coming back.
Dishonesty (improbidade): a dishonest act, such as theft or fraud.
Misconduct (mau procedimento): serious behavior that makes it impossible to continue the employment contract.

If the reason the company gave does not fit any of these kinds of misconduct, or if the event did not happen as the company says, the dismissal for cause can be reversed.

What the company has to prove

Dismissal for cause is the most severe penalty in an employment contract, so it is up to the company to prove the event and show that the penalty was appropriate (CLT, art. 818, II). In practice, the Labor Court usually looks at these points:

The event happened and is proven: with documents, cameras, records or witnesses, and not just the company’s word.
The penalty came right after the misconduct. If the company learned of the event and let weeks go by without doing anything, it is understood to have forgiven it.
The penalty was proportional. A minor, isolated offense does not normally justify dismissal for cause.
There were earlier penalties, when the misconduct is repeated. In cases of lateness or absences, for example, the company is expected to have issued warnings and suspensions before resorting to dismissal for cause.
The same event was not punished twice. If you already received a warning or suspension for an event, the company cannot use that same event for the dismissal for cause.

What you lose with dismissal for cause

In a dismissal for cause, you receive only the salary balance and any accrued vacation pay with the one-third bonus. Left out are:

notice period pay;
proportional vacation pay (TST Summary 171; the TST is Brazil’s Superior Labor Court) and proportional 13th salary;
the 40% penalty on the FGTS and withdrawal of the FGTS balance;
unemployment insurance.

This is exactly what comes back if the dismissal for cause is reversed.

How to prove your side of the story

Gather what shows how your work was and what happened at the dismissal:

The letter or notice of dismissal for cause, with the stated reason.
Earlier warnings and suspensions, or the absence of them.
WhatsApp messages and emails with your boss and coworkers.
Time records, medical certificates and justifications for absences.
Names of coworkers who saw what happened and can be witnesses.

Signing the termination statement confirms receipt of the amounts paid, not that you agree with the reason for the dismissal. You can challenge the dismissal for cause even after signing it.

What the deadline is

You have 2 years from the dismissal to file the lawsuit in the Labor Court, and you can claim amounts from the last 5 years counted from the date of the lawsuit (Brazilian Federal Constitution, art. 7, XXIX). Over time, witnesses and documents become harder to find.

What to do now

Keep the dismissal for cause letter and the termination documents.
Write down the dates: of the alleged misconduct, of any warnings, and of the dismissal.
Save your conversations and list the people who can confirm your side of the story.
Write down the date of the dismissal: the 2-year deadline to file the lawsuit runs from it.

Each case depends on the alleged event and the evidence on each side. See also how the firm works in labor law.

Sources

This text is for information only and does not replace a lawyer's review of your case. The rules cited are Brazilian law as of the article's last update.