The fleet manager has the prerogative to lei to apply certain labor penalties for the misconduct of its employees. They are: warning, admonition, disciplinary suspension and, finally, dismissal for just cause.
But be cautious, analyze the factors when applying these penalties and align them in your fleet policy it is essential for the manager to know how to interpret the seriousness of the act and judge the best way to deal with the situation when executing the decision, being fair before the law and his collaborator.
If, when applying the penalty, the manager is very biased or acts with “excessive rigor”, he may have problems with the Labor Court. In addition to annulling the punishment, it may, in more extreme cases, even determine compensation for moral damages to the employee.
Given this scenario, it is very important that the manager knows the basic principles for the application of labor penalties. After all, if used correctly, they constitute a significant instrument of discipline and standardization of work. In that regard, being strategic to act correctly is crucial.
To know the criminal liability risks it is fundamental to structure a good fleet management and to know how to deal with the inconveniences in order to follow what the law establishes correctly.
Therefore, continue reading as we have brought complete content to help you, the manager, build good practices in the application of labor penalties.
Driver attitudes that may generate labor penalties under the CLT
How the fleet manager can analyze the causes to apply the correct penalties
Assumptions for the application of labor penalties in fleet management
How to apply labor penalties in the management of light fleets
How to avoid applying labor penalties in your fleet management
Driver attitudes that may generate labor penalties under the CLT
It is important to know that the foundation for the application of labor penalties is found in the art. 482 of the CLT - Consolidation of labor laws.
For those who wish to read the text of the law — which we consider very useful — it is important to pay attention to the following part: “constitute just cause for termination of the contract... ".
The document presents all the hypotheses of serious misconduct, and dismissal for just cause would be the most extreme of the labor penalties applicable by the manager, the one that should only be used as a last resort.
According to the decree of law, some of the attitudes that constitute just cause for contract termination are:
- Dishonest and bad faith act.
- Obscene and disrespectful conduct by the employee towards the company and co-workers.
- Negotiations on one's own account without the employer's authorization.
- Breach of company secrets.
- Loss of qualification and obligations provided for by law for the execution of the position.
In view of this, follow the following example on one of the points that can lead to dismissal for just cause:
Item “e” of art. 482 lists as one of the hypotheses of serious misconduct the “indifference in the performance of their duties”. By negligence we must understand any behavior that demonstrates carelessness, negligence, etc.
Within this very broad context, we could classify the lack of punctuality (delay) as serious, however, one should not use a small delay of an employee who has years with the company to justify the application of a dismissal for just cause.
In such a situation, the most correct thing would be a verbal warning or, at most, a written warning. More than that, the Labor Court could consider excessive rigor, determining the annulment of the penalty.
So it's a fundamental premise the analysis of facts based on reasonableness and proportionality, two general principles of law.
In addition, as a manager, you can work on some activities to exercise your position in a fair and strategic way. That way, in addition to encouraging your employees, you can avoid a series of infractions that are often committed unnoticed.
A good tip for this is: encourage your drivers through goals and rewards, seeking to develop the thought that they are all working together for the good of the company, and that if the company is doing well, everyone wins.
With that in mind, you can, for example, set the goal of being the best driver of the month, so your employees will feel more determined to stick with the plan, as they will be rewarded for their good behavior, which will make them feel more at ease.
Read more: How to efficiently avoid fraud in fleet control
How the fleet manager can analyze the causes to apply the correct penalties
Analyzing the case carefully and carefully and following what is provided for by law correctly are crucial factors to be fair with your employee and not make a mistake when applying the penalty.
In a very serious situation, for example, in which the employee is caught committing fraud, such as theft of fuel, immediate dismissal is authorized for just cause.
It would be unreasonable or plausible for the employer to be obliged to keep in its staff someone who has completely broken the trust necessary for the performance of their function.
Something to be observed for the correct application of the penalty is immediacy, that is, the punishment (warning, suspension, just cause) must be applied immediately after knowledge of the fact that originated it.
This is because, if the company was aware of a serious fact and did not apply the penalty, the court will interpret that there was what is called “tacit forgiveness”, that is, it is assumed that the company forgave what happened, “taking advantage” of the fact in the future to justify the desire to dismiss him.
Take into account that each fault can receive only one punishment
This means that you cannot apply a suspension and, after some time, review this penalty to decide that the employee should be dismissed for just cause for the same reason.
Thus, taking into account all the complexity and subjectivity involved in the application of labor penalties, we do not consider it a good technique for the employer to establish in the employment contract or in the fleet policy which sanction should be applied for each situation in a very rigid way.
Take, for example, the issue of traffic fines. You simply cannot want to punish the first infraction committed with a warning, which could result from not signaling with the arrow to make a curve, for example.
It would be a serious affront to the principle of proportionality. Therefore, wanting to foresee all the situations that may arise in order to enshrine them in a rule or internal contract, in addition to having little practical effect before the Labor Court, which will analyze the fact in light of the punishment given, would be a practically unfeasible task from the point of view of practical view.
Read more: Traffic fatigue: how to identify and prevent drivers from driving drowsy
How to predict labor punishments in fleet policy?
Although it is not interesting to establish the punishments rigidly in your fleet policy, it is essential to have some prediction of them in this important internal regiment. After all, everyone needs to be aware of how penalties can happen.
To achieve this objective, while still maintaining flexibility in punishments, the manager must list in his fleet policy a list of activities that can be penalized, without identifying exactly what the penalty is for them, just signaling different levels of severity.
Also, highlight what penalties can be applied, having basic, but not rigid, guidelines for the situations in which each of them is appropriate.
Assumptions for the application of labor penalties in fleet management
The basic assumptions for the application of labor penalties are:
- The occurrence of facts that fall under art. 482 of CLT.
- Careful analysis of the seriousness of the fact, taking into account the reasonableness and proportionality in choosing the punishment to be applied.
- Apply the penalty immediately after knowledge or verification of the fact committed by the employee.
- Keep on file all possible evidence of the fact (written testimonies, documents, footage, etc.).
For all these reasons, it is advisable that the application of labor penalties be analyzed jointly by the manager in charge, the Human Resources department and the company's legal counsel.
Thus, this resource can really be used as an important tool available to the employer, avoiding arbitrariness and liabilities with the Labor Court.
In this context, the ideal is to have parsimony in the analysis. Understanding the difference between a warning, admonition, disciplinary suspension and dismissal is essential so that you know how to apply the correct penalty for each situation.
Understand the difference between them:
Warning
There are two ways to apply a warning, namely: verbal and written. Although the CLT does not provide for the warning, there is the possibility that it exists for reasons of custom that is expressly authorized in article 8.
Thus, the warning is a warning to the employee so that he is aware of his unlawful behavior and changes his position.
Admonition
This punishment has a sense of counseling for the driver to review his behavior and improve it.
For this, it has the character of a criminal action and, although it can be executed verbally, the most appropriate thing is that it be done in writing and noted in the employee's book or registration form.
However, any type of note of this content in the employee's work and Social Security card is prohibited, as provided for in article 29 of the CLT.
Remembering that, repeat behavior may result in termination of contract for cause.
Read more: How does Velocity per Lane reduce risky fleet behaviors?
disciplinary suspension
Here the objective is to punish the employer who did not respect the company's rules or who did not fulfill his duties under the employment contract.
In this context, what is recommended is the suspension of the employee who has had an inappropriate attitude of medium severity.
Suspension results in loss of salary and any other benefit during the period. In addition, the employee can only be suspended from 1 to 30 days
Resignation for just cause
This is the maximum punishment that can be carried out in accordance with article 482 of the CLT. Just cause is any serious or very serious faulty act that results in the termination of the contract.
Remembering that, in addition to losing his job, the employee will have limited rights in the termination of the contract, such as, for example, the impossibility of receiving unemployment insurance.
How to apply labor penalties in the management of light fleets
The choice of penalty to be applied must follow a sequence that takes into account the seriousness and recurrence of the committed act, in addition to the considerations provided for in the fleet policy.
To this end, the manager has at his disposal: verbal warning, admonition, written warning, then, the suspension of work without pay for periods that can vary from 1 to 30 days and, finally, as a last resort, fair dismissal cause.
If there is a recurrence of the infractions committed, the penalties should gradually increase their progression. It is worth noting that Brazilian law does not allow the imposition of fines (with the exception of sports), nor transfers or relegation of function as a form of punishment.
As for recidivism, using the same previous example of lack of punctuality, we must consider that a delay of 10 minutes will not immediately lead to dismissal for just cause (except in those functions where strict compliance with the timetable is essential) .
However, if after receiving a verbal warning, the fact repeats itself, receives a written warning, repeats the delay, then receives a suspension of 1 day, and even so there is a recurrence of the fact, the employee receives a suspension of 2 days and then the path to dismissal for just cause will be paved.
For this we have two observations:
1) The same criteria must be used for all collaborators.
2) In order to characterize recidivism, the infractions must have the same nature.
With all these factors being considered, in addition to a clear and organized fleet policy, we can say that the former employee would have great difficulty reversing such dismissal in the Labor Court.
Read more: Big Data and fleet management: a guide for those who need more results with their fleet.
How to avoid applying labor penalties in your fleet management
Well, I believe that the role of a successful fleet manager includes not only apply labor penalties to their drivers, but also do their utmost to avoid this situation, that is, avoid fines, infractions, bad behavior and other claims. See how:
Training
Constant training is essential for car drivers, mainly about safe driving, since, if your drivers are receiving a large number of fines for speeding, for example, training will help you understand if this is a behavioral problem or if there is a demand in the company that forces the driver to act in that way.
If it is a behavioral problem, training and awareness campaigns should solve it, but, let's say that a delivery company distributes unrealistic service goals to drivers, who, in order to achieve them, must always work above the permitted speed, crossing red lights, etc.
In this case, it is important to listen to the employee and try to establish a arches real, possible and safe for him, which is another indication of the importance of reasonableness and proportionality in the analysis of these penalties, since, in this case, the main fault lies with the company and not with the driver.
fleet policy
The elaboration of a fleet policy in your fleet management is another measure to prevention of situations in which the labor penalty needs to be applied. This is because the fleet policy has all the company's rules.
That said, it can be cited all actions that generate labor penalties, but remember: which labor penalty will be applied in which situation is not something that should be addressed, because as we have seen so far, it all depends do context, intentionality and several other factors.
Read more: Step by step to create your light fleet policy
That is, it is possible to address which actions will generate labor penalties (fines, theft of fuel, etc.) and which are these labor penalties (warning, suspension, dismissal, etc.), but never link one to the other.
Videotelemetry System
Finally, the recognition of each driver is also a fundamental factor for the application of labor penalties, after all, if your company deducts the value of a fine from a driver's salary and has no way of proving that it was him at the wheel, this could greatly harm the company, for example.
In addition, fleet management manages to better monitor its drivers, receiving real-time alerts of their infractions, such as speeding and assisting them behind the wheel with Verbal Coaching.
Do you want to know more about all the possibilities of Golfleet Videotelemetry? Access our eBook about the product:
