Employee Rights in Case of Unfair Dismissal

Unfair dismissal is a reality that can affect any worker governed by the Consolidation of Labor Laws (CLT) in Brazil.

Unlike dismissal for just cause, which occurs due to serious infractions by the employee, dismissal without just cause occurs by unilateral decision of the employer, without the need for formal justification.

However, this type of dismissal entails a series of labor rights that aim to protect the worker and ensure a less abrupt transition.

But have you ever stopped to think: what are, in fact, the rights that ensure your financial stability after an unfair dismissal?

See below:

Dismissal without just cause

Understanding these rights is not just a matter of curiosity, but a tool for empowerment.

After all, prior knowledge of legal guarantees can prevent abuse and allow workers to demand what is owed to them.

The Brazilian labor market, regulated by the CLT, establishes a robust legal framework to protect workers in vulnerable situations, such as unfair dismissal.

Therefore, understanding these rules is essential to ensure that employees receive all the benefits to which they are entitled.

Below, we will detail the main rights, their nuances, and how they apply in practice.

1. Rights Guaranteed in the Event of Unfair Dismissal

Advance Notice: The First Step in Transition

When a dismissal without just cause occurs, advance notice is one of the first rights to be considered.

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According to the CLT, the employer must grant the employee a 30-day notice period, plus 3 additional days per full year of service at the same company, up to a limit of 90 days.

This period can be worked or compensated, depending on the employer's choice.

If the employee is exempted from serving the notice period, he or she receives the amount corresponding to that period as part of the termination.

For example, imagine Ana, who worked for 5 years in a retail company.

When dismissed without cause, she is entitled to 45 days' notice (30 days + 15 days for her 5 years of service).

If the company chooses to compensate for this period, Ana will receive the equivalent of 45 days' salary, in addition to other rights.

This mechanism acts as a financial bridge, allowing workers time to reorganize while seeking new opportunities.

Furthermore, the worked notice period can be fulfilled with a reduction in working hours.

The worker can choose to work 2 hours less per day or not work in the last 7 days of the period, without loss of salary.

This flexibility is an important differentiator, as it allows employees to dedicate time to searching for a new job, balancing professional and personal obligations.

Fine of 40% on FGTS

Another fundamental right in the event of unfair dismissal is the fine of 40% on the balance of the Severance Indemnity Fund (FGTS).

This amount is calculated based on all deposits made by the employer during the employment contract, monetarily corrected.

The fine is compensatory in nature, functioning as compensation for the abrupt termination of the contract.

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Consider the case of João, who worked for 3 years in an industry and accumulated R$ 15,000 in his FGTS.

If dismissed without just cause, he will be entitled to a fine of R$ 6,000 (40% of R$ 15,000), in addition to being able to withdraw the total balance of the fund.

This amount can be crucial to cover expenses while the worker finds a new job.

However, it is essential to check FGTS statements, as errors in deposits can reduce the amount of the fine.

It is worth noting that the 40% fine is exclusive to unfair dismissal.

In other types of termination, such as by agreement or for just cause, this benefit is not applicable.

Therefore, knowing the particularities of each type of termination is essential to avoid financial losses.

Salary Balance and Accrued Vacation

An employee who is dismissed without just cause is also entitled to the remaining salary, which corresponds to the days worked in the month of termination.

In addition, he must receive accrued vacation pay, plus the constitutional third, if there are periods not taken.

These amounts are paid in proportion to the time worked in the year of dismissal.

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For example, if Maria was fired on June 15th, having worked 15 days in the month, she will receive the equivalent of those 15 days as her salary balance.

Furthermore, if she is entitled to accrued vacation pay from 2024, she will receive the full amount of that vacation pay, plus the constitutional third.

These rights ensure that the worker does not leave the company without fair payment for the work already performed.

It is important to emphasize that the employer has a period of 10 calendar days, counting from the end of the contract, to make the payment of the termination payments.

Delays may result in additional fines, reinforcing worker protection.

Therefore, keeping strict control of deadlines is a recommended practice to avoid complications.

Right	Description	Practical Example
Prior Notice	30 days + 3 days per year of service, up to 90 days, worked or compensated.	Ana, with 5 years with the company, receives 45 days of compensated notice (R$ 4,500).
40% fine on FGTS	40% of the total FGTS balance deposited during the contract.	João, with R$ 15,000 of FGTS, receives R$ 6,000 in fines.
Salary Balance	Payment for days worked in the month of termination.	Maria, fired on 06/15, receives 15 days' salary (R$ 1,500, if she earns R$ 3,000).
Expired Vacation + 1/3	Unused vacation, with an additional 1/3 constitutional.	Maria receives R$ 4,000 for accrued vacation + 1/3 (R$ 1,333).

2. Unfair Dismissal: Financial Impacts and Post-Dismissal Planning

The Role of FGTS in Reemployment

Withdrawing the FGTS balance is one of the financial pillars for workers who are unfairly dismissed.

This fund, which corresponds to 8% of the monthly salary deposited by the employer, can represent a significant reserve.

In addition, the worker can access the fund's income, which is adjusted annually.

In 2023, for example, the FGTS yield was 8.83%, according to data from Caixa Econômica Federal, surpassing savings in some scenarios.

To illustrate, imagine that Ana, from the previous example, has R$ 20,000 accumulated in the FGTS.

With the full withdrawal and the 40% penalty, she will receive R$ 28,000 (R$ 20,000 + R$ 8,000).

This amount can be used to pay off debts, invest in professional training, or even start a small business.

Thus, the FGTS functions as a safety net, but requires planning to be used strategically.

However, it is crucial that the worker checks that deposits have been made correctly throughout the contract.

Irregularities, such as underdeposits, are more common than you might think and can be challenged in court.

Therefore, consulting a labor lawyer or the union can be a smart preventative measure.

Unemployment Insurance: Temporary Support

Unemployment insurance is another essential right, intended for workers with at least 12 months of employment in the last 18 months before dismissal.

The benefit varies from 3 to 5 installments, depending on the length of service, and the amount is calculated based on the average of the last 3 salaries, respecting the ceilings established by the government.

For example, João, who received R$ 2,500 per month, may be entitled to 4 installments of approximately R$ 1,800, depending on the calculation by the Ministry of Labor.

This temporary support is vital to cover basic expenses while the worker searches for a new job.

However, unemployment insurance requires that the worker has no other formal source of income, which reinforces the importance of providing accurate information when requesting it.

Furthermore, unemployment insurance can be combined with professional qualification programs offered by the government or private institutions.

This integration is an opportunity for workers to reinvent themselves, especially in a dynamic job market where new skills are constantly in demand.

Financial Planning: The Key to Stability

Unfair dismissal, although unexpected, can be an opportunity to reevaluate financial and professional goals.

A useful analogy is to compare layoffs to a sudden storm: just as a sailor prepares his boat to face unpredictable waves, the worker must organize his finances to navigate the transition.

This includes creating an emergency budget, prioritizing essential expenses, and seeking alternative sources of income, such as freelance work.

Post-dismissal financial planning must consider the strategic use of severance pay.

For example, investing part of your FGTS in training courses can increase your chances of being relocated to a better-paying position.

Furthermore, workers must avoid impulsive spending, which can quickly deplete the resources received.

Finally, it is essential to seek financial or legal guidance, especially in cases of doubt about the calculation of severance pay.

A common mistake is to accept the values presented by the company without checking them, which can result in significant losses.

Therefore, proactivity is the worker's best ally in this scenario.

Appeal	Purpose	Conditions
FGTS	Full withdrawal of balance + fine of 40%.	Exclusive for unfair dismissal; check regular deposits.
Unemployment Insurance	Temporary financial support (3 to 5 installments).	Minimum of 12 months of employment in the last 18 months; no formal income.
Financial Planning	Organization of severance pay for transition.	Create an emergency budget; avoid impulsive spending.

3. Legal Protections and Precautions When Claiming Rights

The Importance of Homologation

Termination approval is a mandatory procedure for workers with more than 1 year of contract, carried out by the category union or the Ministry of Labor.

This process ensures that severance pay is paid correctly and that the employee has the opportunity to clarify any doubts.

Without approval, there is a greater risk of errors or fraud in calculations.

For example, Ana, when approving her termination, realized that the calculation of the notice period was incorrect, with only 30 days considered, instead of the 45 days to which she was entitled.

With the union's assistance, she was able to correct the error and receive an additional R$ 1,500.

This case demonstrates how homologation is an indispensable protection mechanism.

Furthermore, the worker must be aware of the deadlines for approval, which vary depending on the location.

Failure of the employer or employee to appear may lead to complications, such as delays in payment or the need for judicial intervention.

Therefore, scheduling the approval in advance is a recommended practice.

Resources in Case of Irregularities

If the employer fails to comply with the termination obligations, the employee may appeal to the Labor Court.

Irregularities such as underpayment, failure to deposit FGTS or delay in severance payments are subject to legal action.

The deadline to file a labor claim is up to 2 years after the end of the contract, with retroactivity of up to 5 years.

For example, João discovered that his company had not deposited FGTS for 6 months.

After consulting a lawyer, he filed a labor lawsuit and obtained retroactive payment, as well as compensation for moral damages.

This type of resource is essential to ensure that workers' rights are respected, but it requires patience, as labor lawsuits can take months.

In addition to legal action, workers can seek support from unions or the Public Defender's Office, which offer free guidance.

These resources are particularly useful for low-income workers who may not be able to afford legal fees.

Prevention and Knowledge as Tools

Prior knowledge of labor rights is the best way to prevent abuse.

Just as a driver checks the map before a trip, workers should inform themselves about their rights to avoid unpleasant surprises.

Consulting the CLT, seeking guidance from unions, or hiring a specialized lawyer are measures that strengthen the employee's position.

Additionally, keeping detailed records of your employment contract, such as pay slips, FGTS statements, and proof of overtime, is a smart practice.

These documents can serve as evidence in the event of legal or administrative disputes.

Therefore, personal organization is a differentiator in the defense of labor rights.

Finally, the worker must be aware of changes in legislation.

Labor reforms, such as the one in 2017, changed some rules, but basic rights in the event of unfair dismissal remain unchanged.

Keeping up with these changes, whether through news or consultations with experts, is a way to stay prepared for any scenario.

Legal Protection	Description	Recommended Action
Homologation	Review of severance pay at the union or Ministry of Labor.	Schedule in advance; check calculations.
Legal Action	Labor complaint in case of irregularities.	Consult a lawyer or Public Defender's Office; 2 years after dismissal.
Document Registration	Keep payslips, FGTS statements and other receipts.	Organize documents in a physical or digital folder.

4. Unfair Dismissal: Frequently Asked Questions

Question	Response
Can I withdraw my FGTS in the event of any type of dismissal?	No, full withdrawal of FGTS is only permitted in the event of unfair dismissal or in other specific situations, such as purchasing a property or retirement.
What happens if the employer delays paying severance pay?	The employer may be fined, and the worker may seek legal action in the Labor Court to demand payment, with possible compensation.
Am I entitled to unemployment insurance if I resign?	No, unemployment insurance is exclusive to dismissals without just cause or termination by agreement, as long as the length of service requirements are met.
How do I know if the notice period calculation is correct?	Check the length of service at the company (30 days + 3 days per year, up to 90 days) and consult the union or a lawyer to confirm the values.
Can I refuse to work the notice period?	The employer decides whether the notice period will be worked or compensated. The employee can negotiate, but the final decision rests with the company.

Unfair dismissal: Conclusion

Dismissal without just cause, although challenging, is accompanied by rights that protect the worker and facilitate their transition.

From advance notice to FGTS withdrawals, including unemployment insurance and approval, each benefit has a clear purpose: to guarantee dignity and financial stability.

However, the real difference lies in the worker’s knowledge and proactivity.

By informing themselves, organizing documents and seeking guidance, employees transform an adverse situation into an opportunity for growth.

Therefore, being prepared is more than a choice, it is a necessity.

And you, are you ready to know and demand your rights in the next stage of your professional journey?