In November 2017, the concept of “workplace harassment” was incorporated into the Labor Code as a cause for “Visto Bueno” (termination with fair cause) for employer and the worker.
The Labor Code defines workplace harassment as “all behavior that violates the dignity of the person, repeatedly and potentially harmful, committed in the workplace or at any time against one of the parties in the employment relationship or among workers, which may result in the person affected being impaired, mistreated, humiliated, or that threatens or damages their employment situation. ”
Two elements of the definition stand out: (i) the law aims to regulate this type of action even outside the company’s facilities and outside working hours; and, (ii) regarding events that occur between workers, without necessarily one of them being the employer’s representative.
The law reform is inconsistent, since it forces employer to take responsibility for events beyond his control and outside his scope, allowing the employment relationship to be terminated – prior authorities approval´s – due to interpersonal relationships between workers that could happened in their free time.
Based on this, below an analysis of a “Visto Bueno” process when it is requested by the employer against a workers.
Article 172.8 of the Labor Code transcribed below includes workplace harassment among the grounds for the employer to terminate the employment contract, prior approval of “Visto Bueno”:
“For committing workplace harassment, either individually or in coordination with other individuals, towards a colleague, the employer or towards a subordinate in the company.
Prior to the request for approval of “Visto Bueno”, a conciliation chaired by the competent authority will be opened, in which besides the interested party, the representatives of the workers and the employer or whoever represents him will be heard.”
According to this, workplace harassment can occur: (i) when one or more workers harass the employer or workers who represent the employer (e.g. managers, chief, directors, etc.); or, (ii) when one or more workers harass any of their coworkers.
In the first scenario, the employer knows the harassment event directly, since it is the victim of the harassment. In the second scenario, the harassment occurs without the employer necessarily being aware of the event or only knowing about it when the harassed worker (s) communicates it, either directly to the employer or by filing a complaint to the labor authority (Ministry of Labor).
According to the transcribed article, the approval process could only be initiated, prior a conciliation proceeding between the parties, which implies that it will only be possible to initiate the “Visto Bueno” proceeding when it has not been possible for the parties to reach a conciliation or that the harassment persists despite the conciliation.
Consequently, the “Visto Bueno” could only be filed once the conciliation proceeding is finished, either in the workplace itself or before the labor authority (prior employee´s complaint).
In any “Visto Bueno” proceeding, the employer has a period of 30 days, from the moment the harassment event occurred, until the worker is legally notified with the “Visto Bueno” request, except for those violations considered as a “lack of probity” (honesty), in which case that period begins when the employer becomes aware of the workplace harassment event.
The foregoing implies that the employer has approximately 22 days to initiate a “Visto Bueno” proceeding, considering that notice to worker takes approximately 5 business days from the day the request is filed.
Additionally, as the law requires prior conciliation before filing the “Visto Bueno” request, it is very likely that this will take more than 30 days between the harassment event and the notification of the request, in which case the action would have expired.
In conclusion, the chances of obtaining a “Visto Bueno” against a worker for workplace harassment are very low. For the termination of an employment contract due to workplace harassment to be applicable in practice, a legal reform or a National Court ruling with mandatory effect will be necessary. It must determine that the 30 days to filed the “Visto Bueno” request should begin when the employer becomes aware of the workplace harassment event.