What is job abandonment? Understand rules that could lead to Eduardo Bolsonaro being fired from the PF

Despite the differences between the regimes, one point tends to generate confusion: the idea that there is a deadline that automatically transforms an absence into abandonment of work. In practice, it's not that simple. When does it become abandonment? The CLT provides for job abandonment as a case of just cause, but does not establish how many days of absence are necessary to characterize it. Over the years, courts began to adopt the 30-day period as a reference for analyzing cases, but not as an automatic rule, explains Gustavo Fonseca Monteiro, corporate labor lawyer and partner at Tahech Advogados. According to him, Justice usually requires two elements: prolonged and unjustified absence and the employee's intention not to return to work. "Missing work for a period of time and abandoning a job are not the same thing (...) for there to be abandonment, the circumstances must demonstrate that the employee does not intend to return and has decided, even without formal communication, to break the relationship". ? This intention is known in legal circles as "animus abandonandi". In other words, it is not enough for the worker to be absent. There must be evidence that he has, in fact, decided to end the employment relationship. Felipe Mazza, coordinator of the Labor Law area at Efcan Advogados, explains that the 30 days only work as a parameter. "The company must evaluate the specific circumstances and seek to demonstrate that the employee decided to break, through his conduct, the continuity of the employment relationship." Therefore, a person can spend more than a month without working and still not have left their job. A hospitalization, a serious illness, problems related to social security benefits or significant communication difficulties can rule out this conclusion. For just cause to be applied, it is necessary to demonstrate something beyond absence: the intention not to return to work. This care exists because exceptional situations are common, points out Taunai Moreira, partner at Bruno Boris Advogados. A worker may not be able to notify the company immediately because they are hospitalized, facing a serious illness or other relevant impediment, he explains. What does the company need to do before firing? If the worker's intention is one of the central elements of the analysis, it is up to the company to gather evidence before applying dismissal for just cause. The procedure normally begins by checking any justifications for absences, such as: Medical certificates; Social security withdrawals; Admissions or leaves of absence must be considered before making any decision. Next, it is recommended to try to contact through the usual means, such as telephone, email and messaging applications, recording all attempts made. If the worker remains unresponsive, the company must formalize a summons for the worker to return to work or provide justifications. Monteiro explains that the document must inform the period of absence, call on the worker to return or provide justification within a reasonable period of time and expressly warn that failure to respond may constitute job abandonment and result in dismissal for just cause. "The summons must be sent by means that allows proof of both its content and delivery, such as registered letter with acknowledgment of receipt or, as the case may be, extrajudicial notification. E-mail and messages can also reinforce the proof, as long as it is possible to demonstrate sending and receipt." Although the legislation does not determine a minimum number of notifications, experts recommend that all attempts be documented. This could make a difference if the situation is discussed later in the Labor Court. "Without this, the just cause cannot be sustained", says Taunai, remembering that the burden of proof lies with the employer. What does the worker lose if there is abandonment? Eduardo Bolsonaro, former federal deputy and son of former president Jair Bolsonaro Bruno Spada/Chamber of Deputies When dismissal due to abandonment is confirmed, the effects are the same as a dismissal for just cause. In this case, the employee no longer receives: advance notice; 40% fine on FGTS; immediate withdrawal of FGTS due to termination; unemployment insurance; 13th proportional salary; proportional vacation plus one third. On the other hand, some rights remain preserved. The company remains obliged to pay the salary balance for the effective days