Labour Suspension

BOOKS AND ACADEMIC ARTICLES 2017 Coimbra: Edições Almedina

The object of this thesis is the analysis of labour suspension, in Portuguese law, as a neutral term that seeks to comprise the facts that temporarily impair the employee from performing the activity engaged with the employer and to which is allocated suspensive qualification. This thesis is divided into two parts. Part I highlights the cross-cutting nature of the suspensive phenomenon – beyond the labour scope –, emphasizing the importance of the long-term and relational nature of the contract for the full comprehension of the institute. It is our understanding that the general rules of law, designed on a single transaction model, claim for an adjustment in view of long-term contractual relations. Such need for adaptation is of particular relevance in an essay focused on labour suspension, considering the extension and heterogeneity that Portuguese law grants to the institute: pursuant to our law, the labour suspension originally calls several subjects, included in a rather disperse manner in the Civil Code – such as impossibility, temporary or definitive (non)compliance by the debtor, mora credendi and exceptio non adimpleti contractus.

However, the comprehension of the outline of the institute of labour suspension becomes diluted if the implementation of these institutes, as foreseen, in general, in Civil Law, into the labour suspensive field is not clear. We, therefore, recover an intermedium methodological step, disregarded on the traditional comparative process (Civil Law/Employment Law): the identification of deviations and adaptations imposed to the rules applicable to contracts which, together with the employment contract, share a specific feature – the durability – with a view to define the labour suspension and the institutes aggregated therein. Within this scope, we identify distinctive features of long-term obligations, also seen in the employment contract, and which enable to duly square the suspensive phenomenon also in the labour scope: (i) stabilising function – both in the legal and economic and social fields; (ii) exposure to supervening facts; (iii) structural division – single vs. multiple; (iv) organisational dynamic; and (v) intensification of the parties’ binding to ancillary duties.

Whereas Part I provides for a wide view of the suspension phenomenon, with a particular emphasis on the long-term nature of the contract, self-explanatory of several specificities and effects of the institute under analysis, in Part II, the reflection is focused on the suspension within the labour scope. We, therefore, define the main operating concepts of the phenomenon: impossibility, imputation and temporary nature. We verify, in this regard, that, due to several reasons, the employee often prefers the fulfilment of interests outside the labour scope, not attending work. In such cases the legal system removes the effects generally associated to default, excluding the employee’s liability. In this regard, the labour scope simplifies the civil scope, by foreseeing several compelling reasons, which are simply aggregated, under the form of impediment or impossibility: the ground asserted justifies (or not) a positive valuation of the legal system, according to the rules applicable to each case –, and, thus, conditioning the creditor’s right to the due execution of what was agreed. In addition, in the labour scope, the lack of the creditor’s cooperation, although temporary, generally promotes the (definitive) unfeasibility of the work that would be rendered: the complex dimension of an employment contract leads, in this scope, to an impossibility to render the work, alternatively to the creditor’s delay. However, resorting in these cases to the concept of impossibility raised, from the very instant, reservations within the labour scope, considering the consequences expected in the outcome of the remunerative consideration. We, nevertheless, verify in which extent this understanding lacks of adjustment, anticipating the frameworks that seems more adequate to us and the answer to several practical questions, conditioned by such an assumption.

Afterwards, we define the way in which the (non-)imputation of the impediment to the parties should be defined. In such an exercise, it is common the confrontation between labour imputation and civil imputation, often arising a reference to a specific concept of (non-) imputation for suspensive effects (in the labour scope). Besides the cases of suspension due to fortuitous events (fortuitous and force majeure events) and due to a fact imputable to the employer or in the interest of the latter, we make a particular reference to the determination of the imputation of the impediment to the employee and, within this scope, the suspension due to imprisonment.

Finally, although we assert the cross-cutting element to the various suspensive variables, we highlight a particular complexity in the materialisation of the temporary or definitive nature in the suspension due to facts concerning the employee, being often unclear the identification of the limit from which – considering the conflicting interests of the parties – it is no longer adequate to assert that the impediment is provisional but must conclude for the extinction of the contract. We tried to make a clearer assessment thereof, by listing criteria that enable to more strictly assess the temporary or definitive nature of the obstacle to the execution – essential elements to the fulfilment of the operating scope of the institute.