Porto Court of Appeal, proc. 7526/15.0T8VNG.P1, 13.02.2017

DISMISSAL | VALID REASON FOR TERMINATION | FALSE ILLNESS | SHAVED HAIR | UMBANDA RELIGION

 

 

Porto Court of Appeal, proc. 7526/15.0T8VNG.P1, 13.02.2017

 

JURISDICTION: Social

SUBJECT: Dismissal

RAPPORTEUR: Paula Leal de Carvalho

RULING: The appeal was partially granted, with amendment to the established facts and the conclusion that the worker had been legally dismissed with a valid reason for termination.

DOMESTIC LAW:

Code of Civil Procedure, approved by Law No. 41/2013, of 26 June 2013 [Articles 635(4), 639(1), 640]

Labour Procedural Code, approved by Decree-Law No. 295/2009, of 13 October 2009 [Article 1(2)(a)]

Labour Code, approved by Law No. 7/2009, of 12 February 2009 [Articles 119(1), 126, 128(1), 245(1)(b), 351, 357(4), 387(3)]

Civil Code, approved by Decree-Law No. 47344, of 25 November 1966 [Articles 342(2), 762]

Supreme Court of Justice judgment, proc. 08S3085, 03.06.2009

Supreme Court of Justice judgment, proc. 08S2589, 12.03.2009

Supreme Court of Justice judgment, proc. 09S0153, 22.04.2009

Supreme Court of Justice judgment, proc. 08S1905, 12.12.2008

Supreme Court of Justice judgment, proc. 08S1036, 10.12.2008

Porto Court of Appeal judgment, proc. 0844346, 17.12.2008

INTERNATIONAL LAW: n.a.

FOREIGN LAW: n.a.

KEYWORDS: Dismissal; valid reason for termination; Umbanda religion; false illness; shaved hair; disciplinary procedure; ritual; religious discrimination; ethical point of view; unbiased and impartial testimony; bonus pater familias; reasonable man; breach of trust; good faith; duty of respect, urbanity and probity; rules of proper social conduct; cordial treatment; rigour and honesty; duty of loyalty; transparency and integrity; ethical-legal precept; loyal cooperation; duty of diligence; deceit; tolerance; condescension; dishonest behaviour

COMMENTS:

1. 1. This judgment is interesting because it differs from the traditional cases regarding multicultural jurisprudence since it does not relate to conflicts of fundamental rights and cultural-religious issues. However, the common point with the challenges existing in law and contemporary plural societies presents itself in analysing the labour procedural law underlying the case’s critical issue — the existence or inexistence of a valid reason for termination. This judgment is a rare example found in Portuguese legal databases that explicitly mentions the Luso-Afro-Brazilian religion of Umbanda, whose presence is steadily growing in Portugal and around the world.

 

2. 2. Concisely, the court decision under analysis pertains to a worker — the respondent — who lied to her employer — the appellant — and colleagues in stating that she had cancer. Under the justification of health treatments, the worker began arriving late without presenting any written proof, such as a medical report. The employer allowed the worker’s delays as it was assumed that these were a necessary consequence of the oncological treatment. Reversing the lower court decision in part and amending the established facts, the Porto Court of Appeal partially granted the appeal. It concluded that the worker violated duties of probity, loyalty, and good faith. According to the labour legislation in force, the worker’s behaviour constituted serious misconduct and was, therefore, a valid reason for the termination of the work agreement. The relevant decision by the Porto Court of Appeal contradicted the Deputy Attorney General’s opinion, who had argued for the rejection of the appeal.

 

3. 3. According to the court, the worker violated several of her duties, e.g. probity, loyalty and good faith, through her behaviour and statements. This violation resulted in the unreasonableness of requiring the employer to maintain the employment relationship. To reach this conclusion, the court based itself on legal scholarship and case law, laying down three requirements for dismissal for valid reasons. These requirements are as follows: a subjective element (behaviour), an objective element (gravity and consequences of the behaviour), and a causal link between these two elements. The relevant decision clarifies that the objective requirement should be assessed “according to the criteria of objectivity and reasonableness, according to the understanding of a bonus pater familias”. This concept of a bonus pater familias may be subject to criticism due to its possible sexist connotations, as was the case in France, where it was eliminated from all domestic legislation by Article 26 of Law No. 2014-873, of 4 August 2014 [see GEMA TOMÁS MARTÍNEZ, “La substituición del ‘buen padre de familia’ por el estandar de la ‘persona razonable’: Reforma en Francia y valoración de su alcance”, Revista de Derecho Civil, vol. 2, no. 1, 2015, pp. 58-66]. However, in the present judgment, the expression “bonus pater familias” is justified based on Portuguese legislation, jurisprudence, and scholarship, which is also in line with other European countries (e.g., Italy) and the Roman law doctrine of the bonus pater familias [see KATHARINA STYPULKOWSKI, Der bonus pater familias im klassischen Römisches Recht: soziales Abbild und Rechtsbegriff, Hamburg, Verlag Dr. Kovač, 2017, pp. 181-214; AURELIA COLOMBI CIACCHI, “Alte und neue Paradigma in der Fahslässigkeitshaftung”, in A. Colombi Ciacchi et al. (eds.), Haftungsrecht im dritten Millenium: Liber Amicorum Gert Brüggemeier, Schriftenreihe des Zentrums für europäische Rechtspolitik an der Universität Bremen, vol. 52, Nomos, 2009, pp. 164-166].

 

4. 4. Umbanda’s role in the judgment emerges from the factual analysis. Question two of the instructional basis drawn by the court of first instance read as follows: “Was the thing mentioned under F) intended to better convince the employer and the co-workers of the illness mentioned in 1)?”. In turn, “the thing mentioned under F)” corresponds to the fact that: “the worker had shaved her hair”. According to the worker’s testimony in first instance, she shaved her hair to comply with a ritual of her religion, the Umbanda religion. During her questioning, the court showed sensitivity by asking her whether she had not mentioned having cancer due to fear of religious discrimination in the workplace. In her reply, however, the worker simply declared that she had never said that she had cancer.

 

5. 5. The employer contested the worker’s statements about her shaved hair. According to the employer, the shaved hair was a “weapon” used by the worker to convince others of her condition as a cancer patient. The employer included this argument in the termination note of the disciplinary procedure, which the worker did not dispute: “Thus, since the beginning of 2014, the worker has been absent or arriving late to work, giving as justification that she had throat cancer and was undergoing the respective medical treatment. She shaved her hair to better convince the employer and colleagues”. In this way, external appearance, including hair — a central identity mark among human groups [see VICTORIA SHERROW, Encyclopedia of Hair: A Cultural History, Westport, Greenwood Press, 2006, pp. XIX-XXVI], may play a role as evidence in labour legal proceedings.

 

6. 7. In the process of Umbanda’s transplant to Portugal, the ritual of shaving the hair has been modified to fit the Portuguese reality [see ISMAEL PORDEUS JR, Portugal em Transe: Transnacionalização das Religiões Afro-Brasileiras: Conversão e Performances, Lisbon, Social Sciences Press, 2009, pp. 147-154; CLARA SARAIVA, “Energias e curas: A Umbanda em Portugal”, Revista Pós Ciências Sociais, vol. 8, no. 16, 2011, pp. 57-59]. Some of Umbanda’s religious leaders have chosen not to shave new adherents’ hair to prevent difficulties in everyday life. In an ethnographic interview with Saraiva, a Umbanda religious leader stated the following about the ritual of shaving the saint: “Here in Portugal, people are not used to such things. This is not Brazil nor Africa. If I had my iaôs scraped, how could they return to work? Nowadays, one needs to pay attention to these things”. [see CLARA SARAIVA, “Afro-Brazilian Religions in Portugal: witches, priests and pais de santo”, Etnográfica, vol. 14, no. 2, 2010, p. 282]. The unfamiliarity with Umbanda rituals is easily explained by Portugal’s socio-cultural and religious context — a country with an overwhelmingly Catholic majority. Lowe explains that western Christianity suggested short hair for male individuals while prescribing long, uncut, but controlled hair for women [see SCOTT LOWE, Hair, New York, Bloomsbury Publishing, 2016, p. 75]. Thus, the Umbanda ritual of shaving the hair goes in the opposite direction of Christianity.

 

7. No processo de transplantação da Umbanda para Portugal, o ritual de rapar o cabelo foi modificado para adequar-se à realidade portuguesa [cf. ISMAEL PORDEUS JR, Portugal em Transe: Transnacionalização das Religiões Afro-Brasileiras: Conversão e Performances, Lisboa, Imprensa de Ciências Sociais, 2009, pp. 147-154; CLARA SARAIVA, ?Energias e curas: A Umbanda em Portugal?, Revista Pós Ciências Sociais, vol. 8, n.º 16, 2011, pp. 57-59]. Assim, alguns líderes religiosos da Umbanda optam por não rapar o cabelo de novos adeptos para que estes não enfrentem dificuldades no quotidiano. Numa entrevista concedida a Clara Saraiva no âmbito de investigação etnográfica, um sacerdote da Umbanda observou: ?Em Portugal, as pessoas não estão acostumadas com estas coisas. Aqui não é o Brasil ou a África. Se eu rapasse meus iaôs, como eles(as) poderiam retornar ao trabalho? Atualmente, é preciso tomar cuidado com essas coisas? [cf. CLARA SARAIVA, ?Afro-Brazilian Religions in Portugal: bruxos, priests and pais de santo?, Etnográfica, vol. 14, n.º 2, 2010, p. 282]. A falta de familiaridade com os rituais da Umbanda é facilmente explicada pelo contexto socio-cultural e religioso de Portugal, país de maioria católica. Conforme explica Scott Lowe, o Cristianismo Ocidental deu preferência ao cabelo curto para indivíduos do sexo masculino e prescreveu cabelos longos, mal-cortados e controlados para pessoas do sexo feminino [cf. SCOTT LOWE, Hair, New York, Bloomsbury Publishing, 2016, p. 75]. O ritual Umbanda de rapar o cabelo vai na direção contrária do Cristianismo.

 

8. 8. Regarding the established facts in the case, it is notable that the worker’s religious belonging to Umbanda was unknown to her colleagues and her employer. Such belonging was an important deciding factor, not only in the judgment under review but also in the ruling of the court of first instance, especially concerning points five to seven of the preliminary matters. Two witnesses called by the employer had declared in first instance that they believed the respondent worker to be Catholic, as she had publicly mentioned receiving the visit of the Priest for Easter at her home [Porto District Court, 5th Labour Section, proc. 7526/15.0T8VNG, 13.07.2016]. These testimonies suggest that the worker might have been practising both Christian and Umbanda rituals. The literature indicates that followers of Umbanda in Portugal are simultaneously followers of Christian religions [see CLARA SARAIVA, “Afro-Brazilian Religions in Portugal: witches, priests and pais de santo”, op. cit. p. 273], developing, therefore, the so-called religious syncretism.

 

9. 9. In any case, the worker’s hair was merely a side factor – not the main factor – in forming the judges’ understanding of the case. The main issue was to determine whether or not the worker had communicated to the employer that she had throat cancer. Even so, the judges dedicated special attention to the issue of hair shaving and discussed it in the ratio decidendi: “In this case, although it has not been proved that A. shaved her hair in order to give more credibility to her claims about the illness, it is beyond doubt that, deliberately and consciously, she told her employer and co-workers that she had cancer, making them believe that this was the case when this did not correspond to the truth”.

 

Mariana Monteiro de Matos

Guest researcher in the framework of InclusiveCourts’ collaboration with CUREDI

 

Cite as: MONTEIRO DE MATOS, Mariana, “[Annotation to the judgment of the] Porto Court of Appeal, proc. 7526/15.0T8VNG.P1, 13.02.2017”, 2022, available at https://inclusivecourts.pt/jurisprudencia2/.

 

REFERENCES IN THE LITERATURE: n.a.

 

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