By: Rafael Mello and Ellen Souza

Indirect termination is a form of termination of the employment contract at the employee's initiative and occurs when the employer commits serious breaches in relation to its legal and contractual obligations, that is, the employee is subjected to situations that make the continuation of the employment relationship unsustainable.

Similar to what happens with the cases of dismissal for just cause of the employee, indirect termination is provided for in article 483 of the CLT, which provides a limitative list of cases for its application, which are transcribed and commented on below:

1. services are required that are beyond their strength, prohibited by law, contrary to good customs, or outside the contract;

This hypothesis applies in cases where the employer changes the employee's functions by ordering him to perform activities beyond his knowledge or strength, as well as in cases where the employee is ordered to engage in illicit conduct or conduct that may offend customary rights.

• is treated by the employer or his/her superiors with excessive rigor;

Line “b” above refers to employees who are subjected to extreme pressure from their superiors, bringing to the hypothesis a certain degree of subjectivity to the definition of what constitutes excessive rigor and its distinction from the regular use of the employer's own directive power.

• to be in clear danger of considerable harm;

In item "c", the employee who is subjected to situations that expose him to the risk of considerable harm, putting his health, life and physical integrity at risk, may fall under this provision of indirect termination when he does not have due training or preparation, except, by logical consequence of the legal interpretation, those activities that impose a certain degree of danger, unhealthiness or dangerousness that are directly and naturally resulting from the very attribution of the position and that therefore have legal rules for additional remuneration, reduced retirement time due to the function and other similar situations.

• the employer fails to comply with the obligations of the contract;

The above provision applies to cases in which the employer fails to comply with the basic elements of the employment contract, such as payment of wages, land deposits, among others. It is worth noting here that this non-compliance must be serious enough to justify an indirect termination, just as, in comparative terms, an employee's misconduct must be serious enough to justify the application of a just cause.

• the employer or his agents commit an act against him or his family that is harmful to his honor and good reputation;

In this provision, the legislator sought to protect the honor of the employee and his/her family members against acts committed by the employer, obviously in the person of the hierarchical superior, but in some cases also by acts committed by coworkers that are not prevented or addressed by the employer. Once again, the subjective nature of the gravity of the facts that give rise to an indirect termination.

• the employer or his/her agents physically offend him/her, except in cases of self-defense, whether for their own or for someone else's sake;

Here the text is self-explanatory and, in our understanding, physical offense, even if minor, already justifies indirect termination, except in the case of self-defense as the text itself states.

• the employer reduces their work, whether by piece or task, in such a way as to significantly affect the amount of wages.[1]

This last paragraph is in line with salary protection in order to prohibit the unjustified reduction of employee salaries when they are paid by piece or task.

It can be seen above that the list provided by the article only covers truly serious situations and cannot be trivialized.

The legislator also understood that the employee who decides to terminate his employment contract in this way will be unable to attend work, with the exception of the provisions of paragraph 3 of the aforementioned article, which highlights that when the employee is faced with the situations in items “d” and “g”, he may choose whether or not to remain at work until the end of the process.

In the event of recognition of indirect termination, the employee will receive the severance and compensation payments in the same manner as they would receive if the termination of the contract occurred in the form of unjustified dismissal by the employer.

However, if the indirect termination is not proven by the employee, the judge may declare the termination of the contract, recognizing the request for indirect termination as a request for resignation or declare that the employment contract remains active, depending on the specific case.

Therefore, it is imperative for employers to periodically review their internal procedures and take care of their management practices. compliance labor law to avoid and prevent labor claims with requests for indirect termination, especially in those cases where there is a certain abuse in the search for the application of this institute. Mazzucco&Mello supports its clients in maintaining good labor practices, adapting the company's reality to the law, maintaining compliance labor and, finally, defend such companies from requests and lawsuits with such content.

[1] Consolidation of Labor Laws, Accessed on 12/01/2023 at 6:06 pm, on the website https://www.planalto.gov.br/ccivil_03/decreto-lei/del5452.htm