How does advance notice work? See rules for parties

In many countries, including Brazil, prior notice is a legal obligation.

The main objective is to guarantee a fairer and more organized process of terminating the employment contract, minimizing negative impacts for both parties.

The exact rules on how it should be granted, its duration and other details vary according to each country’s labor legislation.

So, how does advance notice work under the CLT and what are the rules?

Understand better below.

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What is advance notice?

Prior notice is a legal concept that refers to the advance notice that an employer or employee must give to another when they wish to terminate an employment contract.

It is a procedure that aims to give both parties enough time to prepare for the separation and look for alternatives, such as finding a new job (in the case of the employee) or finding a replacement (in the case of the employer).

How does advance notice work?

In Brazil, advance notice works within what is defined in Consolidation of Labor Laws (CLT). How it works is very simple: the party who wishes to terminate the employment contract must notify the other party in advance.

The advance period, in turn, varies according to the circumstances.

How long should notice last?

The duration depends on who is asking. The employer must communicate the dismissal at least 30 days in advance if it is the first year of service.

When the employee has been with the same company for more than one year, there may be an increase of 3 days per year of work (proportional notice), limited to a maximum of 90 days.

If the employee wishes to resign from employment and deliver a notice letter, he must communicate his intention 30 days in advance.

If the employer grants the employee immediate dismissal, he will deduct the corresponding days from the salary or the amount to be paid upon termination.

What are the types of advance notice?

In Brazil, it can be classified into three main types, according to the way it is fulfilled and the circumstances of termination of the employment contract.

Understand below.

Worked

This format occurs when one of the parties notifies the other of the intention to terminate the employment contract and both parties agree that the period will actually be worked.

During this period, the employee continues to perform their duties as normal and receives normal salary and benefits as if they were still employed.

Working notice is the most common way to comply with this rule, but it can only be served for 30 days.

Fulfilled at home

Notice served at home occurs when the employer exempts the employee from continuing to work during the period.

In this case, the employer pays the employee the salary corresponding to the notice period, including all benefits and financial rights, but the employee does not need to attend the workplace.

This can happen at the employer’s option or if there is a mutual agreement between the parties, but it is not provided for in the CLT.

Compensated

This type occurs when one of the parties decides to end the employment contract and, instead of fulfilling the period working or at home, chooses to pay compensation equivalent to the days owed to the other party.

In other words, instead of continuing to work or receiving payment for the notice days, the employee or employer pays a sum of money to the other party.

Generally, the amount of this compensation is equal to what the employee would receive if they were working during the period.

Who defines which advance notice model to follow?

When an employee decides to resign, he or she is generally required to serve a 30-day notice period during his or her regular work schedule, unless the employer chooses to waive this obligation in whole or in part.

On the other hand, if the employer dismisses the employee without just cause, he must pay the notice, which consists of 30 fixed working days, plus three additional days for each year of service provided.

The employer has the option to decide whether he wants these 30 fixed days to be actually worked or financially compensated, as provided by law.

What does the CLT say about advance notice?

Article 487 of the CLT says that:
“If there is no stipulated period, the party that, without just cause, wants to terminate the contract must notify the other party of its termination at least:

I – eight days, if payment is made per week or less; (Wording given by Law No. 1,530, of 12/26/1951)

II – thirty days for those who work for a fortnight or month, or who have more than 12 (twelve) months of service in the company.”

As the first case is not usually common, the notice is usually 30 days.

In addition, the following article, 488, also explains that the “employee’s normal working hours, during the period of notice, and if the termination has been promoted by the employer, will be reduced by 2 (two) hours a day, without prejudice to the full salary.”

“The employee is allowed to work without the reduction of the 2 (two) hours per day provided for in this article, in which case he may be absent from work, without prejudice to his full salary, for 1 (one) day, in the case of item l, and for 7 (seven) calendar days”.

Is advance notice mandatory?

Yes, it is mandatory when terminating an employment contract, according to the CLT, it needs to be done 30 days in advance for payments made every two weeks or monthly.

In what situation can prior notice not be applied?

The situation in which notice is not applied is when an employee is dismissed for cause due to serious misconduct.

In the case of theft, workplace violence, gross negligence, insubordination, among other reasons, the employer may waive the obligation to provide notice. In this case, termination is immediate.

There is still the possibility that, without cause, the parties may reach a mutual agreement to waive compliance.

This can happen when both parties agree to terminate the employment contract immediately or on a specific date, without the need to comply with the notice period.

What are the notice payment rules?

The rules for paying severance pay during the worked notice and the compensated notice follow different deadlines.

In the case of the worker, the amounts owed to the employee must be paid on the day the employment contract is terminated.

On the other hand, in the case of compensation, the employer has a period of up to 10 days, counting from the date of dismissal, to pay the severance pay.

When calculating severance pay, all wages for the last month of work are taken into account.

This includes base salary, as well as any bonuses, commissions paid by the company, overtime and additional (such as night shift, length of service, dangerousness, unhealthy conditions, among others) that apply to the employee.

All of this information is used as a basis for calculating severance pay.

How is the compensation amount calculated?

In the indemnified notice, the employee does not work during the notice period, but receives financial compensation equivalent to the amount of salary and benefits that he would receive if he were working.

Consider a worker who was hired by a company in April 2017 and was dismissed without just cause in September 2021 after working for 4 years and 5 months.

According to the rule of proportionality, he is entitled to an increase of 3 days of notice for each full year of work.

In this case, he has completed four full years, so his notice period is 42 days.

Suppose this worker’s last salary was R$2,000.00. To calculate the total amount, you will divide the salary (R$2,000.00) by the number of days in a month (30): R$2,000.00 ÷ 30 = R$66.67 per day.

Then, multiply the daily value (BRL 66.67) by the number of days in the notice (42 days): BRL 66.67 x 42 = BRL 2800.14.

This would be the amount he will receive, in addition to other rights he may have at the time of termination, as defined by the articles 457 and 458 of the CLT.

What is the punishment for non-compliance with notice?

Both parties can be punished for not complying with the prior notice within the defined period.

According to article 487:

For companies

“The employer’s absence gives the employee the right to wages corresponding to the period of notice, always guaranteeing the integration of this period into his/her length of service.”

For employees

“The absence on the part of the employee gives the employer the right to deduct the salaries corresponding to the respective term.”

Should an intern have advance notice?

Interns They do not have the same rights as employees with a formal employment contract. This happens because they are governed by the Internship Law and have a different type of relationship with the company. Therefore, advance notice does not apply to internships.

The internship relationship is based on an internship contract, which usually has a defined term and is primarily intended to provide the intern with the opportunity to gain practical experience in their field of study.

The internship contract can be terminated before the scheduled end without the need for 30 days’ notice.

Normally, the termination of an internship contract is dealt with by mutual agreement between the parties and may even occur at any time.