Many workers do not know all their labor rights and end up returning the 40% fine that is related to the value of FGTS which is paid by the company after dismissal. What many do not know is that this practice is illegal.
The fact that the worker needs to return some amount to the employer, especially the 40% on the deposits that were made in his Severance Indemnity Fund (FGTS), when the contract is terminated, has been a very common practice. This is a proposal made by the company for the employee and the employer, in order to end the contract period with less damage to the entrepreneur.
O FGTS This is a fund linked to the employment contract, in which every month the employer must deposit employees up to 8% of their gross salary in an account with Caixa Econômica Federal.
The purpose of the FGTS is to ensure more security for employees
The purpose of the FGTS is precisely to guarantee more security for the employee when he is fired without just cause by the boss or when there is some kind of agreement provided for in the work laws.
The fine that will be established is borne by the FGTS and consists of an amount that the employee must pay to his/her employee in cases of unfair dismissal. In this sense, the calculation of the fine will correspond to up to 40% of all deposits that were made in the worker’s account.
There is also the possibility that both parties will come to an agreement. For these cases, the fine ends up going from 40% to just 20%.
FGTS refund is illegal
Companies are prevented from making a proposal for the refund of the fine. It must be clear that this attitude can even lead to a conviction for moral damages for the company.
Each worker will have a deadline to carry out the FGTS withdrawal and that varies depending on your position. Check it out below:
- Formal worker: From the second week to 120 days after your dismissal;
- Domestic worker: From the second week up to 90 days after your dismissal;
- Employee who was removed for qualification: only during the suspension of the employment contract;
The benefit can be requested in person, at one of the Regional Superintendencies for Labor and Employment, Special Secretariat for Social Security and Work, National Employment System and in other positions that are accredited by the Ministry of Labor and Social Security.
How to carry out a good negotiation between the parties?
One of the most viable options is to negotiate a dissolution, which is the modality of contract rescission made by mutual agreement between the parties. This modality will ensure that the worker receives up to half of the prior notice.
O FGTS agreement will be done with a 20% fine, the withdrawal of up to 80% of the FGTS deposits, salary balance and 13th salary, overdue vacations and a proportional amount of up to 1 quarter of the amount. The cancellation will not guarantee the receipt of the unemployment insurance.