O aviso prévio proporcional e suas implicações nas relações de trabalho

Abstract

The proportionality of the termination notice is set forth under the 1988 Federal Constitution, in its article 7, XXI, whereby urban and rural workers are entitled to “the termination notice in proportion to the length of service, of at least thirty days, as provided by law”. However, the enforceability of this constitutional rule expressed in this article is limited, because it depended on the performance of the infraconstitutional lawmaker. Accordingly, twenty-three years later the enactment of Law no. 12.506/2011 brought the necessary regulation related to the termination notice in proportion to the length of service. Its article 1, sole paragraph, stipulates that three days shall be added to the thirty days, for each year of service rendered to the same company. Law no. 12.506/2011 was subject to a number of controversies about the application of the proportional termination notice and, even though some years have passed since said law was passed, the corresponding practice still leads to doubts and discussions, many of which have been, little by little, solved by labor caselaw. Discussions about the enforceability of the rule of proportionality, counting of proportional length of service, time limit established by law, bilateralism of the proportional termination notice and its retroactivity and application of the new Law and remaining issues, equally important for Labor Law, currently face an interesting doctrine and caselaw debate, and are gradually adjusting to the reality of labor relations, which polemic themes are approached in this research work