Extra labor behaviours: the legal nature of the lacks commited for arrest reason | 2015

Author(s) Bruno José Correia Rodrigues
Advisor(s) Teresa Alexandra Coelho Moreira
Year 2015

Synopsis The present study concerns on the effect of the application of a privative measure of freedom or conviction in the labor legal relationship, in virtue of extra labor illicit behaviours. In the labor legal system, the lack of clarification with respect to the absence for reason of privative measure of freedom on the part of the legislator has proportionate doctrinal divergences and some contradictory decisions in the jurisprudence, particularly in the scope of the preventive custody. Consequently, based in this quandary, the study is divided in two chapters. In the first chapter it is produced an exposition of the rights and the duties of the contracting parties of the employment contract that are considered essential for this problematic one. In the second chapter it is developed the thematic in question, with an approach to the extra labor behaviors, to inclusion of doctrinal positions and to the solutions pointed for the same ones with respect to the resolution of the quandary in study. In this current study the approach to the subject it is executed with the resource on the doctrinal positions and case-law concerned by the several developed issues. Of this study it is concluded that the extra labor behaviors, independently of its criminal illegality, are susceptible to produce effect in the relation legal-labor, nominated through the breaking of the loyalty duty. Concerning the effect of the privative measures of freedom, the Portuguese legal system continues omitted in the resolution of the effect of these measures, in contrast to other legal systems and even of some instruments of collective regulation of work, where at least they establish the situation of the preventive custody. With this legislative omission, it has attended to the varied positions and verdicts, particularly on the question of the preventive custody. This situation has led to the resolution of the contract of work for fact imputable to the worker, in virtue of the qualification of the absence as unjustified. However, considering the interests in cause and for the reasons displayed in the study, it is understood that the problematic one in question will have to be solved case by case and in purpose of breach of confidence, fundamental principle of the employment contract.

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