On the statutory presumption of acceptance of dismissal by the employee

ABSTRACT

This article examines the statutory presumption of acceptance of dismissal enshrined in paragraph (6) of Article 142 of Law No. 13/2023, of 25 August (Labour Law), pursuant to which the receipt by the employee of the compensation legally owed gives rise to a presumption of acceptance of the termination, on the grounds invoked therefor, and of the satisfaction of the employee’s entitlements. The study addresses the extent to which this presumption may be reconciled with the principle of the non-waivability of employees’ rights and with the fundamental right of access to the courts, against the backdrop of recent Supreme Court case law reinforcing the preclusive effect thereof. Methodologically, the article adopts a dogmatic and legal-historical analysis of Mozambican labour legislation, complemented by an examination of national jurisprudence and a comparative-law inquiry into the legal orders of Portugal, Cape Verde, Angola and Brazil. The findings indicate that the institute evolved from an irrebuttable presumption, precluding any challenge whatsoever, into a rebuttable presumption capable of being set aside through the contestation of just cause, and that such presumption operates exclusively in the post-contractual phase, once the employee’s legal subordination has already been extinguished. It is concluded that the presumption is normatively well-calibrated and constitutionally compatible with the labour-law and procedural principles at issue, insofar as it safeguards both legal certainty in employment relations and the effective judicial protection of employees’ rights, and it is further submitted, de lege ferenda, that the law ought to impose upon the employer a duty to notify the employee, at the time of payment of compensation, of the right to challenge the just cause invoked.

 

Keywords: Presumption; dismissal; termination; compensation; justice.

 

ABBREVIATIONS AND ACRONYMS

B.O. – Official Gazette of Cape Verde.

B.R. – Official Gazette of Mozambique.

Cfr./cf. – Confer (compare).

D.G. – Portuguese Government Gazette, former designation.

CLT – Brazilian Consolidated Labour Laws.

D.R. – Portuguese Official Gazette.

1. – edition.

LCCT – Portuguese Law on Termination of the Employment Contract.

LGT – Angolan General Labour Law.

No./no. – Number.

1. – page.
2. – pages.
3. op. cit. – opus citatum.

TRE – Évora Court of Appeal, Portugal.

TRL – Lisbon Court of Appeal, Portugal.

TS – Supreme Court of Mozambique.

TS-S – Supreme Court of Mozambique, Section.

STJ-S – Supreme Court of Justice of Cape Verde, Section.

TST – Brazilian Superior Labour Court.

SDI – Individual Disputes Subsection of the TST.

Vol. – Volume.

 

INTRODUCTION

The employment contract is, by definition, a legal transaction of continuous performance and durable vocation. Nevertheless, the stability inherent to it does not render it perpetual: the employment relationship is inevitably subject to extinction, whether through expiry, mutual agreement, resignation, notice, or dismissal. Upon termination of the employment relationship, the principal, secondary, and ancillary duties that shaped it are extinguished, without prejudice to the rights that arose during its currency – such as the right to indemnification, to compensation, or to other legally due amounts, which persist and may indeed arise from the very rupture of the contract.

Within this framework, the present scientific article addresses a controversial question of Mozambican labour law: the statutory presumption of acceptance of dismissal enshrined in paragraph (6) of Article 142 of Law No. 13/2023, of 25 August (Labour Law). Under this provision, the mere receipt by the employee of the compensation legally owed gives rise, simultaneously, to a presumption of acceptance of the termination, of the validation of its grounds, and of the full satisfaction of the employee’s rights.

The issue acquires particular relevance in light of recent decisions of the Supreme Court of Mozambique, which have reinforced the position that receipt of compensation without an express reservation constitutes tacit acceptance of the just cause, precluding the right to challenge it. This jurisprudential trend raises a fundamental question: to what extent is the presumption set out in paragraph (6) of Article 142 of the Labour Law compatible with the principle of the non-waivability of employees’ rights and with the fundamental right of access to the courts, enshrined in paragraph (1) of Article 62 of the Constitution of the Republic of Mozambique?

To answer this question, the article is structured into five interdependent chapters. The first analyses the durable nature of the employment contract, the modes of termination provided for in the Labour Law, and the pecuniary effects inherent thereto, with particular attention to the distinction between indemnification and compensation – concepts frequently conflated in practice, but resting on distinct legal grounds and functions. The second examines the legislative evolution of the presumption and its legal nature, identifying the underlying fact that triggers it and the three levels on which it operates: acceptance of the termination, validation of its grounds, and the presumption that all of the employee’s rights have been satisfied. The third analyses the judgments rendered in Cases No. 15/2004-L, 163/05-L and 37/25-L of the Supreme Court of Mozambique, evidencing the consolidation of a jurisprudential trend reinforcing the preclusive effect of the presumption. The fourth undertakes a comparative-law analysis, contrasting the Mozambican regime with the solutions adopted in Portugal, Cape Verde, Angola and Brazil, thereby situating the national model within the Lusophone landscape and assessing its coherence with contemporary legislative and jurisprudential trends. Finally, the fifth chapter examines the reconciliation of the presumption with the constitutional principle of the non-waivability of employees’ rights and with the fundamental right of access to the courts, seeking to demonstrate that, by enshrining a rebuttable presumption that may be set aside through the mechanism of paragraph (7) of the same article, the legislature struck a normatively sound balance between legal certainty in labour relations and the effective protection of employees’ rights.

 

1. THE EMPLOYMENT CONTRACT, ITS DURABLE NATURE, AND FORMS OF TERMINATION

1.1. The Employment Contract

The Employment Contract is understood as “the agreement whereby a person, the employee, undertakes to render his or her activity to another person, the employer, under the latter’s authority and direction, in return for remuneration.“[1]

1.2. Termination of the Employment Contract: nature, forms, and effects

The employment contract is, by definition, a legal transaction of continuous performance, characterised by its vocation for stability. The employee’s obligation to perform his or her activity in a subordinate manner presupposes durable integration into the employer’s organisation.[2] This durable nature does not, however, mean that the contract is a lifelong or perpetual one.[3]

As JOÃO LEAL AMADO observes, “the employment contract, it is said, is like love: eternal while it lasts! The truth is that, like so many other things, sooner or later the employment relationship comes to an end, and the definitive rupture of the contractual bond then occurs.”[4]

Once established between the employer and the employee, the employment contract may come to an end. The employment contract is said to have terminated when, on account of any legally relevant cause, it ceases to produce effects – that is, when the contractual bond linking the employee and the employer, as such, is extinguished.[5]

The Labour Law enshrines a set of situations enabling one of the parties to terminate the employment relationship, namely[6]: (i) expiry; (ii) revocation by agreement; (iii) notice; (iv) resignation; and (v) dismissal.[7]

In addition to the enumeration of the modes of termination provided for by law, it is important to understand the nature of the grounds that may lead to termination of the employment bond, since each rests on distinct reasons that condition the applicable regime. Thus, termination of employment contracts may have various causes, but the distinction between termination on objective grounds and termination on subjective grounds stands out.[8]

Among the forms of termination on objective grounds are: termination of the contract for structural, technological, or conjunctural reasons; termination for lack of economic resources; and termination on other grounds[9] unrelated to either the employer or the employee.[10]

In cases of termination on subjective grounds, it is the conduct of one of the parties that founds the termination, giving the counterparty grounds to extinguish the contract – namely conduct that seriously violates labour rights.[11]

The subjective grounds for termination of employment contracts provided for in the Labour Law amount to a breach of the contract and give rise to resignation and dismissal, provided for respectively in subparagraphs (a) and (b) of paragraph (4) and subparagraph (b) of paragraph (5) of Article 138, and in Article 69, all of the Labour Law.

Not all grounds for resignation with just cause are, however, subjective in nature, namely in cases where there is a change of circumstances or non-culpable conduct on the part of either the employee or the employer.

The law likewise provides for forms of termination independent of the will of the parties, namely expiry [subparagraph (a) of paragraph (1) of Article 135], supervening impossibility [subparagraph (b) of paragraph (1) of Article 136], or the death of an individual employer [subparagraph (c) of paragraph (1) of Article 136], or the death or retirement of the employee [subparagraphs (d) and (e) of paragraph (1) of Article 136].

To these is added termination by revocatory agreement [subparagraph (b) of paragraph (1) of Article 135 and Article 137], an autonomous mode that does not depend on just cause. Notice is likewise configured as an autonomous form of extinguishing the employment bond.[12]

Having concluded the analysis of the modes of termination and their respective grounds, it is now appropriate to examine the pecuniary effects associated with termination, in particular the distinction between indemnification and compensation, an understanding of which is essential for the correct application of the labour regime.

1.3. Effects of termination

Under paragraph (2) of Article 135 of the Labour Law, termination of the employment relationship[13] determines the extinction of the parties’ obligations relating to performance of the employment bond and gives rise to rights[14] and duties.[15] It produces legal effects from the moment the other contracting party becomes aware of it, by means of a written document.[16]

Following termination: (i) the employee is no longer obliged to report for work; (ii) the employer is no longer obliged to pay salary for the period following termination; (iii) new rights and duties arise, particularly those provided for by law – such as payment of the allowance for untaken holidays, outstanding overtime, and other labour credits.

1.4. The Distinction Between Indemnification And Compensation In The Termination Of The Employment Contract

Termination of the employment contract may take multiple legal configurations, each with its own effects on the employee’s pecuniary rights. Among these effects, two concepts stand out that are frequently conflated in practice: indemnification and compensation. Although both involve pecuniary payments, their nature, grounds, and function are distinct. A clear understanding of this distinction is essential to the correct application of the Mozambican labour-law regime.

The distinction between indemnification and compensation flows directly from the very legal logic of the regime governing termination of the employment contract. Indemnification is owed where there is unlawfulness in the termination, and is intended to redress harm caused by culpable conduct on the part of the employer. Thus, where the employee resigns with just cause, under Article 139 of the Labour Law, by reason of a serious breach of the employer’s duties – such as non-payment of salary, harassment, assault, or unlawful alteration of working conditions – the employee is entitled to indemnification, because the termination results from an unlawful act attributable to the employer. Likewise, where the employer carries out an unlawful dismissal, whether for lack of just cause or for breach of the legal procedure, the employee is equally entitled to indemnification, since the unlawfulness is attributable to the employer, under paragraph (2) and (3) of Article 146 of the Labour Law.

Compensation, on the other hand, is owed where termination of the contract occurs lawfully, without fault on the part of the employer, and is intended merely to mitigate the economic impact of the loss of employment. Thus, in dismissals on objective grounds – economic, technological, or structural reasons, elimination of the post, or unsuitability – the employee is entitled to compensation, because the termination does not result from unlawfulness but from legitimate organisational reasons.

Compensation is paid by reason of the exercise of a right, without the employer having acted unlawfully or culpably; it is, in essence, an amount owed on the basis of no-fault civil liability, arising from lawful interventions.[17]

The primary function of compensation is thus to mitigate the losses arising from loss of employment, through the award to the employee of a variable pecuniary amount calculated by reference to remuneration and length of service. Compensation is further linked to the notice period, which affords the employee some time to seek new employment, functioning as a transitional fund. For this reason, compensation is not punitive in nature, nor does it constitute a deterrent to dismissal; it seeks only to balance the economic effects of a lawful termination, which is why it is retained even where the employee, at the time of dismissal, has already secured new employment on more favourable terms.[18]

1.5. The Terminological Imprecision Of Paragraphs (4) And (5) Of Article 142 And The Scope Of Paragraph (6)

The express reference to the compensation provided for in paragraphs (4) and (5) delimits the scope of application of paragraph (6) of Article 142 all of the Labour Law. It is noted, however, that paragraphs (4) and (5) employ the term “indemnification,” which, at first sight, might suggest that these are indemnificatory payments. A systematic reading of the regime demonstrates, however, that this terminology amounts to a terminological imprecision.

Paragraph (4) governs termination of fixed-term contracts, providing that the employer must make available to the employee an “indemnification payment” corresponding to the remuneration that would have accrued until the end of the contractual term. Paragraph (5), in turn, provides that, in the case of an open-ended contract, the “indemnification” is paid in accordance with paragraph (3) of Article 139, save where Article 143 applies. In both cases, we are dealing with lawful forms of termination on the employer’s initiative, without any unlawfulness attributable to it. The payments provided for are intended merely to mitigate the economic impact of the loss of employment, and not to redress harm arising from unlawful conduct.

Thus, although the legislature uses the term “indemnification,” the normative content of paragraphs (4) and (5) corresponds unequivocally to compensation.[19] The use of the term indemnification stems from a terminological imprecision, historically inherited from earlier legislative formulations – namely from Portuguese law – where the word was used in a non-technical sense, to designate any pecuniary payment owed to the employee.

Paragraph (6) itself corrects this imprecision by referring to the payments under paragraphs (4) and (5) as “compensation“, revealing the legislative intention to correctly characterise the legal nature of these payments. The provision can only operate in situations of lawful termination, since it is only there that compensation exists; it does not apply to resignations with just cause, nor to unlawful dismissals, which give rise to indemnification under paragraph (3) of Article 139. In such cases, there is no room for any presumption of acceptance of the termination, precisely because the unlawfulness prevents the production of effects releasing the employer from liability to the detriment of the employee.

The systematic interpretation of Article 142 thus requires that paragraphs (4) and (5) be read as compensation regimes, notwithstanding the terminology used, and that paragraph (6) be applied exclusively to lawful terminations on objective grounds.

1.6 Principles of Labour Law

1.7 The principle of the more favourable treatment of the employee

The principle of the more favourable treatment of the employee, also known as favor laboratoris, is enshrined in Article 20 of the Labour Law, which provides that: “the non-mandatory rules of this Law may only be departed from by an instrument of collective labour regulation or by an employment contract, where the latter establishes more favourable conditions for the employee.”

Reference to the principle of more favourable treatment of the employee is not found solely in Article 20 of the Labour Law, but also in other provisions, such as paragraph (1) of Article 19 and paragraph (4) of Article 171, both of the Labour Law.

The principle of more favourable treatment allows that, where two or more rules apply to the same situation, the one affording more favourable treatment to the employee shall apply, irrespective of hierarchy, provided that the lower-ranking rule to be applied does not contravene a mandatory rule, and that superior rules do not preclude it.[20]

1.8 The principle of the non-waivability of employees’ rights

This principle manifests itself through the prohibition on altering working conditions, except where there is mutual agreement, or, where it is a unilateral decision, where the law so permits.

This principle finds its enshrinement in paragraph (1) of Article 77 of the Labour Law, which establishes that: “employment relationships may be modified by agreement of the parties or by unilateral decision of the employer, in the cases and within the limits provided for by law.”

This principle is mandatory in character, with the clear intention of protecting the employee. In certain situations, the principle of the non-waivability of employees’ rights[21] prevents the employee’s rights from being disposed of even where the employee consents to it.[22]/[23]

1.9. The fundamental right of access to justice

The fundamental right of access to justice, more than the mere possibility of bringing an action before the courts, guarantees to every citizen the possibility of asserting his or her legally protected rights and interests, whether before the courts or through extrajudicial mechanisms.

Under paragraph (1) of Article 62, ab initio, of the Constitution of the Republic of Mozambique, “the State guarantees citizens’ access to the courts (…).” This fundamental right guarantees the possibility for any citizen to resort to the courts to have his or her rights assessed independently and impartially.

 

2. THE STATUTORY PRESUMPTION OF ACCEPTANCE OF JUST CAUSE

2.1. Legislative evolution of the presumption

This section reconstructs that evolution in three successive stages: (i) the absence of any presumption in Law No. 8/85, of 14 December; (ii) its enshrinement as an absolute presumption in Law No. 8/98, of 20 July; and (iii) its conversion into a relative presumption by Law No. 23/2007, of 1 August, a structure that Law No. 13/2023, of 25 August, would later maintain.

Law No. 8/85, of 14 December, the first Labour Law of independent Mozambique, approved by the People’s Assembly, governed termination of the employment contract and its pecuniary effects, providing, in particular, for termination on the employer’s initiative with notice[24] and the corresponding indemnification graduated by reference to length of service,[25] as well as unilateral termination without just cause, subject to double the indemnification amounts.[26]

Law No. 8/85, of 14 December, did not, however, enshrine any statutory presumption of acceptance of termination founded on the mere receipt of compensation by the employee. The institute under study did not, therefore, form part of the Mozambican labour-law order at this initial stage.[27]

The presumption of acceptance of just cause through receipt of compensation first appears with the enactment of Law No. 8/98, of 20 July (Labour Law), which repealed Law No. 8/85, of 14 December. Law No. 8/98, of 20 July, established in paragraph (8) of Article 68 that “receipt by the employee of the compensation referred to in paragraphs (5) and (6) of this article is equivalent to acceptance of the termination, unless the parties agree on reinstatement.“

An employee who received the compensation was thereby automatically barred from judicially challenging the termination. Receipt of the compensation was equivalent to a tacit waiver of the right to question the termination, producing immediate releasing effects. In our view, this presumption, provided for in paragraph (8) of Article 68 of Law No. 8/98, of 20 July, was an irrebuttable one[28] (iuris et de iure): once the compensation was received, nothing further was owed to the employee, since receipt was equivalent to definitive acceptance of the termination, regardless of the employee’s actual intention.

With the enactment of Law No. 23/2007, of 1 August, the legislature reworded paragraph (8) of Article 68 of Law No. 8/98, of 20 July, which came to read as follows: “receipt by the employee of the compensation referred to in paragraphs (4) and (5) of this article gives rise to a presumption of acceptance of the termination and of the grounds on which it is based, as well as of the satisfaction of his rights, unless the parties agree on reinstatement.“[29]

Unlike Law No. 8/98, of 20 July, which provided for no mechanism of challenge whatsoever, Law No. 23/2007, of 1 August, established that the presumption could be set aside by challenging the just cause on which the dismissal was based.[30] This innovation granted the employee the right to challenge the grounds for the termination in court, even after receiving the compensation, provided the employee demonstrated the non-existence of the just cause alleged.

As to its effects, Law No. 23/2007, of 1 August, broadened the scope of the presumption, extending it to three dimensions, namely: “receipt of compensation by the employee gives rise to a presumption of acceptance of: (i) the termination, (ii) the grounds on which it is based, and (iii) the satisfaction of his rights.” That is, the employee agrees with the termination of the contract, with the just cause or grounds invoked, and is deemed to have had his rights satisfied through full payment of all credits due.

The reformulation carried out by Law No. 23/2007, of 1 August — which replaced paragraph (8) of Article 68 of Law No. 8/98, a provision later renumbered as paragraph (6) of Article 131 of that same Law and, finally, as paragraph (6) of Article 142 of Law No. 13/2023 — forms part of a broader overhaul of Mozambican labour legislation, undertaken roughly a decade after Law No. 8/98, aimed at aligning the national regime with the then-emerging demands of the labour market and with international labour-law standards. This context helps explain why the legislature chose to abandon the rigidity of the irrebuttable presumption inherited from 1998: a presumption producing definitive releasing effects immune to any judicial review would have sat uneasily with the minimum procedural guarantees demanded by those standards — anticipating, at this early historical stage, the very balance between legal certainty and worker protection that Chapter 5 of this article goes on to develop.

Law No. 13/2023, of 25 August, retains the structure introduced by Law No. 23/2007, of 1 August, enshrining in paragraph (6) of Article 142 that “receipt by the employee of the compensation referred to in paragraphs (4) and (5) of this article gives rise to a presumption of acceptance of the termination and of the grounds on which it is based, as well as of the satisfaction of his rights, unless the parties agree on reinstatement.“

Having established the historical evolution of the institute, it is now appropriate to qualify its legal nature.

2.2. Legal nature of the presumption

The regime governing presumptions is set out in Articles 349 and 350 of the Civil Code, from which it follows that: “presumptions are the inferences that the law or the adjudicator draws from a known fact in order to establish an unknown fact.“[31] In the present case, the presumption consists in the inference drawn from the circumstance that the employee has “accepted” the compensation.

Paragraph (7) of Article 142 of the Labour Law provides that: “the presumption may be rebutted by challenging the just cause for the termination.” We are thus dealing with a rebuttable presumption (iuris tantum[32]), and not an irrebuttable one (iuris et de iure), which may be set aside by challenging the very existence of the just cause. The burden of rebutting it falls on the employee, who must challenge the just cause within the applicable time limit.

It is a presumption iuris tantum, since the receipt of compensation by the employee, even though it signifies acceptance of the termination, does not entail a waiver of any rights arising from breach of, or termination of, the contract.

The statutory presumption,[33] provided for in paragraph (6) of Article 142 of the Labour Law, operates on three levels, namely: presumption of acceptance of the termination – presumption of acceptance of the grounds – presumption of satisfaction of rights.

The underlying fact that triggers this presumption is, solely and exclusively, the receipt of the compensation legally owed, without the employee having made any express reservation as to the just cause.

 

3. ANALYSIS OF SUPREME COURT CASE LAW

In the present chapter we shall analyse the decisions rendered by the Supreme Court, namely the following: (i) Case No. 15/2004-L;[34] (ii) Case No. 163/05-L;[35] and (iii) Case No. 37/25-L.[36],

3.1. Judgment rendered in Case No. 15/2004-L, of 5 March 2009

The Supreme Court held: “Pursuant to paragraph (8) of Article 68 of Law No. 8/98, receipt by the employee of the compensation for unilateral termination of the employment contract with notice is equivalent to the employee’s acceptance of the termination of the employment bond. The fact that the claimant received the compensation indicated at page 37, together with the amount resulting from the corrections made by the lower court, thus corresponds, under the law, to acceptance on his part of the contractual termination in the manner in which it took effect, such that the claimant thereafter lost standing to bring any claim whatsoever before the courts in relation to that same termination.“

This judgment rests on three interpretative pillars: (i) receipt of the compensation is equivalent to acceptance; (ii) acceptance covers the entire set of rights arising from the termination; and (iii) receipt operates as a bar to the right of action in respect of any matter relating to the termination.

3.2. Judgment rendered in Case No. 163/05-L, of 1 October 2009

The Supreme Court held that “(…) having received the remuneration owed for the notice period and the compensation corresponding to the termination of the contract, the appellant accepts the just cause for the termination and may not bring a claim in court for indemnification on that ground (cf. Article 68, paragraph (8) , of Law No. 8/98, of 20 July).”

The Supreme Court ordered the employer to pay the employee the salary owed for the period during which he was provisionally deprived of his liberty, but upheld the dismissal of the challenge to the termination.

3.3. Judgment rendered in Case No. 37/25-L, of 3 June 2025

In summary, this judgment held that “under Article 131, paragraph (6), of the Labour Law then applicable[37] receipt by the employee of the compensation gives rise to a presumption of acceptance of the termination and of the grounds on which it was based, as well as of the satisfaction of his rights – a presumption that may be set aside by challenging the just cause, under paragraph (7) of the same provision.“

The Court relied on the judgment in Case No. 07/2020-L, to underscore that:

• the receipt of the compensation and legal benefits by the claimants, without any reservation, constituted tacit acceptance of the existence of just cause for the collective dismissal;
• the principle of good faith, enshrined in Article 762, paragraph (2), of the Civil Code, requires the parties to act with loyalty and consistency in their legal relations;
• challenging a collective dismissal solely on the ground of alleged formal irregularities, after acceptance of the compensation, amounts to a breach of the principle nemo potest venire contra factum proprium, recognised in legal doctrine and case law;
• failure to challenge the just cause for the collective dismissal in a timely manner prejudices the defendant’s defence and violates the principle of legal certainty;
• the claimants’ conduct amounts to an abuse of rights, under Article 334 of the Civil Code, in manifestly exceeding the limits imposed by good faith; and
• allowing the claimants to challenge the dismissal in these circumstances could give rise to unjust enrichment, in breach of Article 473 of the Civil Code.

Analysis of the three judgments allows the following conclusions to be drawn: (i) receipt of compensation by the employee, without reservation as to the just cause, constitutes tacit acceptance of the termination, of its grounds, and of the satisfaction of all labour credits; (ii) the challenge to the just cause must be brought in a timely manner, on pain of the right of action lapsing (within six months[38]). Failure to challenge within that period, together with receipt of the compensation, definitively consolidates the termination; (iii) the challenge must bear on the existence of the just cause. It is not sufficient to allege formal defects or to dispute the amount of the compensation in order to rebut the presumption;[39] and (iv) in the absence of a challenge to the just cause, the dismissal is deemed lawful on the merits, with no room for reinstatement or additional indemnification.

The combined analysis of the three judgments reveals that the Supreme Court’s approach is not aimed at streamlining procedure or reducing the procedural caseload, but rather at reinforcing the stabilising function of the statutory presumption of acceptance of termination. Its ratio decidendi consists in preventing opportunistic litigation, preventing the employee from simultaneously benefiting from the compensation received and from a subsequent challenge inconsistent with his tacit acceptance, thereby preserving the coherence of the parties’ conduct and the stability of labour relations.

 

4. COMPARATIVE LAW

This chapter undertakes a comparative analysis between the Mozambican regime governing termination of the employment contract and the models adopted in Portugal, Cape Verde, Angola, and Brazil, with particular attention to the legal treatment of receipt of compensation by the employee. The aim is to identify whether, and to what extent, these legal orders enshrine mechanisms presuming acceptance of dismissal, and to understand the solutions each system adopts in order to balance legal certainty against the effective protection of the employee. This comparative approach makes it possible to situate the Mozambican regime within the Lusophone landscape and to assess its proximity to, or divergence from, the legislative and jurisprudential trends of the other countries examined.

4.1. The presumption of acceptance of dismissal under Portuguese law

Under Portuguese law, the presumption of acceptance of dismissal is set out in Article 366 of the Labour Code,[40] applicable to dismissal on elimination of the post by reference from Article 372, as well as to collective dismissal. That provision states:

“the employee is presumed to accept the dismissal where he receives from the employer the whole of the compensation provided for in this article[41]“

“The presumption referred to in the preceding paragraph may be rebutted provided that, simultaneously, the employee returns or places, in any manner, the whole of the pecuniary compensation received at the latter’s disposal.“[42]

4.1.1. Legislative evolution and legal nature

The evolution of the institute in Portugal displays similarities with the Mozambican legislative course. The original version of the LCCT (Law No. 64-A/89) established, in paragraph (3) of Article 23, an irrebuttable presumption (iuris et de iure), under which receipt of the compensation “counted as acceptance of the dismissal.” This solution was subsequently abandoned by Law No. 32/99, which repealed the provision.

The 2003 Labour Code (Law No. 99/2003) reintroduced the presumption in paragraph (4) of Article 401, but without specifying the manner of rebutting it, which, in light of Article 305 of the Civil Code, led to the understanding that it was a rebuttable presumption, capable of being set aside by any means of proof.

The current 2009 Labour Code innovated by expressly establishing, in paragraph (5) of Article 366, the specific manner of rebutting the presumption: “returning or placing at the employer’s disposal the whole of the compensation received, simultaneously with a declaration of non-acceptance of the dismissal.“

4.1.2. Analysis of Portuguese case law

a) Judgment of the Évora Court of Appeal of 20 December 2012 (Case No. 156/12.0TTSTB.E1)

Rendered in the context of a dismissal on elimination of the post, this judgment established the following key positions:

• the presumption of acceptance of dismissal, operating ex lege upon the mere receipt of the compensation, precludes any reaction by the employee against the dismissal, irrespective of whether the dismissal is tainted by procedural or substantive defects;
• mere communication of non-acceptance of the dismissal, unaccompanied by the return of the compensation, does not set aside the presumption;
• merely returning or placing the compensation at the employer’s disposal constitutes conduct demonstrating non-acceptance of the dismissal, thereby rebutting the presumption;
• receipt of the compensation gives rise to a presumption of acceptance of the dismissal, even where the employer has not fully complied with the legal formalities required (such as prior notice, the time limit for submitting an opinion, among others).

The Court underscored that “receipt of the compensation by the employee, in the case of dismissal on elimination of the post, gives rise to a presumption that he accepts the dismissal, such that he may not challenge it, whether on grounds relating to non-compliance with procedural rules (procedural grounds) or on grounds relating to the non-fulfilment of the substantive requirements for dismissal (substantive grounds). That is, put another way: receipt of the compensation by the employee gives rise to a presumption of acceptance of the dismissal, even where the employer has not fully complied with the formalities provided for dismissal on elimination of the post, namely the formalities set out in Articles 368, paragraph (5), 370, 371, paragraph (3), subparagraph (b), and 384, subparagraph (c), all of the Labour Code.” (Sic)

b) Judgment of the Évora Court of Appeal of 25 January 2024 (Case No. 511/20.T8FAR.E1)

Rendered in the context of a collective dismissal, this judgment represents the most recent and mature interpretation of the institute, consolidating the understanding that:

• the expression “simultaneously,” contained in paragraph (5) of Article 366, does not mean “immediately” or “instantaneously,” but should rather be interpreted with the flexibility necessary to encompass situations requiring case-by-case assessment;
• rebutting the presumption is achieved, in practice, by the employee performing two unequivocal acts of non-acceptance of the dismissal: (i) returning the whole of the compensation to the employer, and (ii) an act of manifest opposition to the dismissal, namely bringing interim proceedings to suspend the dismissal, bringing an action challenging the collective dismissal, or contesting the employer’s pleadings in the special proceedings;
• the time limit for returning the compensation must be assessed judicially in light of reasonableness, taking into account the entire dynamic context of the specific case;
• the ratio legis of the presumption is to promote stability and legal certainty in the settlement of compensation, balancing the advantage granted to the employee (advance payment of the compensation as a condition for the lawfulness of the dismissal) with the need to stabilise the legal situation.

4.2. Brazilian legal order

4.2.1. Absence of a statutory presumption

In Brazil, the Consolidated Labour Laws (CLT), approved by Decree-Law No. 5.452/1943 and successively amended, do not establish any statutory presumption of acceptance of dismissal founded on the mere receipt of termination payments. The Brazilian framework proceeds from a different principle: protecting the employee against a possible involuntary or uninformed waiver of rights.

Article 477, paragraph (1), of the Labour Law Consolidation requires that payment of termination amounts, where the contract has lasted for more than a year, be made before the employee’s trade union or before the Public Prosecutor’s Office for Labour Matters. Precedent (Súmula) 330 of the TST established that trade-union ratification does not produce a full and irrevocable discharge: only the instalments expressly itemised and not reserved by the employee are deemed discharged. Even where the employee receives the compensation and signs the termination instrument with trade-union assistance, acceptance of the dismissal is not presumed.

4.2.2. The 2017 Labour Reform and the extrajudicial agreement

Law No. 13.467/2017 (Labour Reform) introduced the extrajudicial labour settlement procedure, provided for in Articles 855-B to 855-E of the Labour Law Consolidation. Through this mechanism, the employer and the employee, each assisted by separate counsel, may jointly submit to the labour judge an agreement for ratification, in which the parties grant a general discharge of the employment contract. In this context, the question of the broad general discharge has become the subject of intense jurisprudential controversy.

4.2.3. Brazilian Superior Labour Court case law

The SDI-1 of the TST[43] has held that, where the legal requirements are met – separate counsel for each party, absence of vitiated consent, and reciprocal concessions – an extrajudicial agreement containing a general discharge clause must be ratified. The 3rd and 4th Panels of the TST,[44] by contrast, have adopted a more cautious position: the judge may reject abusive clauses and exclude the general discharge clause where manifest prejudice to the employee is found. This jurisprudential divergence demonstrates that, in the Brazilian system, there is no statutory presumption arising from receipt of amounts: general discharge depends on a special procedure and is frequently contested before the courts.

4.3. Angolan legal order

4.3.1. Absence of a presumption of acceptance

Under Angolan law, receipt of the compensation owed on termination of the contract cannot be interpreted as acceptance of the dismissal, nor as a waiver of the right to bring a judicial challenge. This conclusion follows not only from the letter and logic of the law, but also from Angolan case law and doctrine, which have consistently held that labour rights are, by nature, non-waivable, and that acts performed under economic duress cannot be interpreted as manifestations of free and informed will.

The case law of the Supreme Court of Angola has repeatedly held that the employee, in receiving the termination payments, is not thereby validating the dismissal, but merely safeguarding his immediate subsistence. In several decisions, the Court has stated that receipt of compensation constitutes an act of “mere economic necessity,” which does not reflect tacit acceptance of the employer’s decision, nor does it prevent the employee from bringing the appropriate challenge within the statutory time limit. This position is consistent with the principle of employee protection and with the very structure of the General Labour Law, which, in Article 285, paragraph (4), expressly recognises the right to challenge the dismissal without establishing any limitation linked to receipt of the compensation.

Angolan doctrine has been equally clear on this point. António Francisco de Almeida maintains that the employee does not waive the right to challenge the dismissal by receiving the compensation, since a waiver of labour rights is valid only if express, unequivocal, and subsequent to the judicial decision, and can never result from ambiguous or economically constrained conduct.[45] Along the same lines, Albano Pedro contends that receipt of the termination payments is an act compatible with judicial challenge, and that any interpretation to the contrary would violate the principle of the non-waivability of labour rights.[46]

The very normative structure of the General Labour Law reinforces this conclusion. Article 313 provides that the right to challenge the dismissal lapses 120 days after the date of the dismissal, and not the date of receipt of the compensation – which shows that the legislature did not link receipt to acceptance, nor intended that such an act should have a preclusive effect on the right of action. There is thus no presumption, under Angolan labour law, of acceptance of dismissal founded on receipt of compensation.

4.4. Cape Verdean legal order

The 2016 labour reform, introduced by Legislative Decree No. 1/2016, enshrined, in the context of collective dismissal, a particularly relevant normative solution: the express codification of a statutory presumption of acceptance of dismissal by the employee. This presumption, set out in Article 224, paragraph (5), of the Labour Code, provides that: “the employee is presumed to accept the dismissal where he receives the compensation provided for in this article.”

This is a rebuttable statutory presumption (iuris tantum) – admitting proof to the contrary – which operates automatically upon the mere receipt of the compensation owed. Acceptance of the dismissal does not depend on any express declaration by the employee: the simple material act of receiving the compensation produces the legal effect of acceptance. This mechanism is intended to afford legal certainty to the employer and to stabilise the legal relationship following payment of the compensation, avoiding subsequent litigation contrary to the employee’s initial conduct.

The presumption has a strictly delimited scope of application: it applies exclusively to collective dismissal, and is not extended to other modes of termination of the employment contract. This exceptional solution demonstrates the legislature’s intention to confer greater stability and predictability on this specific type of termination, which involves multiple employees and has a significant impact on business organisation.

The presumption of acceptance functions as a tool for rationalising the process, preventing employees who voluntarily received the compensation from subsequently challenging the dismissal without returning the amounts received. The provision promotes expedition, reduces artificial litigation, and ensures that the judicial challenge proceeds from a coherent and unequivocal position on the part of the employee. Underlying the provision is the civil-law principle that the law must interpret conclusive conduct according to its objective meaning, as would be understood by a reasonable addressee placed in the employer’s position (Article 236 of the Civil Code).

4.4.1. Mechanism for rebutting the presumption

Article 224, paragraph (6), of the Labour Code, provides that “the presumption may be rebutted provided the employee returns or places at the employer’s disposal the whole of the compensation received.” Rebuttal requires simultaneity between the return and the declaration of disagreement, ensuring that the employee does not benefit from the compensation while challenging the dismissal.

This mechanism preserves the right to bring a judicial action, ensuring that the presumption does not become an absolute restriction on the right to challenge. Full restitution of the compensation is the necessary and sufficient condition for the employee to be able to contest the lawfulness of the dismissal before the courts, without engaging in contradictory or abusive conduct.

4.2.2. Case law of the Supreme Court of Justice of Cape Verde

The case law of the Supreme Court of Justice of Cape Verde (STJ) has played a decisive role in consolidating and clarifying the regime governing the presumption of acceptance of dismissal.

a) Judgment rendered in Appeal Case 107/2004, of 20 June 2021

Judgment No. 14/2021 of the Supreme Court of Justice is of particular historical and systematic interest. In this decision, the Supreme Court of Justice addressed the concept of tacit acceptance of contractual termination by the employee, examining whether a waiver of rights may be inferred from conduct demonstrating acceptance of a situation capable of extinguishing the employment contract.

The Court held that the employee’s conduct following termination – namely the failure to exercise rights in a timely manner and the adoption of conduct inconsistent with an intention to challenge – may be interpreted as an act of acceptance of the dismissal. This decision reveals that the legal reasoning underpinning the presumption predates its codification: it was this very principle that guided the legislature in the 2016 reform, and which the Supreme Court of Justice continues to apply, now with the express normative support of Article 224, paragraph (5).

b) Judgment rendered in Case 137/2016, of 15 March 2023 – the presumption as a general interpretative principle

Judgment No. 54/2023 of the Supreme Court of Justice constitutes the decision most directly relevant to this topic. The Court examined the conduct of an employee who, following termination of the contract, received and used the compensation awarded by the employer – in the amount of 267,000$00 – without returning it.

Although the specific case did not concern a collective dismissal, the Supreme Court gave weight to the existence of the rule in Article 224 as the legislative expression of a broader principle: receipt of the compensation, without reservation and without restitution, constitutes conduct objectively apt to demonstrate acceptance of the termination of the employment bond.

The Court underscored that the legislature, in introducing the presumption in Article 224, expressly adopted an approach already followed by case law. The employee’s conduct must be assessed in light of the principles of good faith, reliance, and the objective interpretation of contractual declarations, under Articles 236 and 237 of the Civil Code.

In the specific case, the failure to return the compensation – even after the action was brought – was interpreted as a tacit waiver of any credits arising from the possible unlawfulness of the termination, thereby extinguishing the employee’s right to contest the dismissal in court.

c) Judgment rendered in Case 220-2015, of 31 July 2023 – confirmation of the practical application of Article 224.

Judgment No. 91/2023, rendered by the 3rd Section of the STJ on 31 July 2023 (Case No. 220-2015), examined a challenge to a collective dismissal brought by several employees. The court, upholding the challenge on grounds of formal defects, ordered the employer to pay the indemnification provided for in Article 224 of the Labour Code.

This judgment demonstrates that Article 224 is indeed applied in the context of collective dismissal. The fact that the Supreme Court of Justice, in ordering payment of the compensation, was simultaneously activating the presumptive mechanism of paragraph (5) – should the employee receive it and not return it – demonstrates the practical operation of the regime. The presumption is not, therefore, a purely theoretical rule, but a central element of the discipline governing collective dismissal.

 

5. RECONCILING THE PRESUMPTION WITH THE RIGHT OF ACCESS TO JUSTICE AND THE PRINCIPLE OF THE NON-WAIVABILITY OF RIGHTS

5.1. The presumption in light of the principle of the non-waivability of rights

The principle of the non-waivability of employees’ rights – also known as the principle of non-renunciation – constitutes one of the structural pillars of Mozambican labour law. Its enshrinement in paragraph (1) of Article 77 of the Labour Law reflects a mandatory protective logic intended to correct the structural asymmetry of the employment relationship: the employee is in a position of legal and economic subordination, which exposes him to the risk of waiving legally guaranteed rights under pressure, necessity, or ignorance. This principle is not, however, absolute or timeless. Its operation is functionally limited to the period during which the employment contract remains in force, a phase in which subordination justifies reinforced protection. Once the contract has terminated, that situation of dependency disappears: the bond of subordination dissolves and the employee regains full autonomy to dispose of the credits owed to him.

It is precisely at this post-contractual moment that the presumption in paragraph (6) of Article 142 of the Labour Law comes into play. The underlying fact that triggers it – receipt of the compensation legally owed, without an express reservation as to the just cause – occurs after the employment relationship has already been extinguished, in a context in which the employee is, in principle, free to dispose of his credits. The presumption does not interfere with rights during the currency of the contract, nor does it affect the active phase of the employment relationship in which non-waivability operates most intensely. It is nonetheless recognised that the employee may still be economically vulnerable at the moment of receiving the compensation. Economic necessity may, in certain cases, limit the employee’s genuine freedom of decision. It is for this reason that paragraph (7) of Article 142 performs an essential safeguarding function: by expressly allowing the presumption to be rebutted through challenge of the just cause, the legislature recognises that receipt of the compensation cannot, by itself, amount to a definitive and irrevocable waiver of the employee’s rights.

This development distinguishes the current regime from that in force prior to Law No. 8/98, of 20 July, under which the presumption was irrebuttable (iuris et de iure) and receipt of the compensation was equivalent, without any possibility of challenge, to full acceptance of the termination. The enshrinement of a rebuttable presumption (iuris tantum) represents a significant normative advance, reconciling the legal efficiency of the presumption with the effective protection of the employee’s rights.

5.2. The presumption in light of the fundamental right of access to justice

The fundamental right of access to justice, enshrined in paragraph (1) of Article 62 of the Constitution of the Republic of Mozambique, is not confined to the mere formal possibility of bringing a judicial action. In its substantive dimension, it guarantees to every citizen the real and effective possibility of asserting his or her legally protected rights and interests, through an independent, impartial, and timely judicial assessment. It is thus a genuine right to effective judicial protection.

At first sight, the presumption set out in paragraph (6) of Article 142 might appear to constitute a restriction on this fundamental right: the employee who receives the compensation would seemingly be barred from challenging the dismissal. Such a reading is, however, constitutionally unacceptable and normatively incorrect. The presumption is rebuttable, and paragraph (7) of the same article expressly and unequivocally enshrines the employee’s right to rebut it by challenging the just cause. The legal system does not close the courthouse doors to the employee. On the contrary, it offers a specific and clearly defined procedural path for contesting the validity of the dismissal, even after receipt of the compensation.

Paragraph (7) functions as a safety valve, allowing the employee to challenge the existence of the just cause and to adduce evidence that the just cause did not exist or was invalid, thereby setting aside the effects of the presumption. The presumption thus does not constitute a restriction on the right of access to justice, but rather a mechanism for stabilising legal relationships, compatible with effective judicial protection.

 

CONCLUSION

This article began from a precise research question: to what extent is the presumption enshrined in paragraph (6) of Article 142 of the Labour Law compatible with the principle of the non-waivability of employees’ rights (paragraph (1) of Article 77 of the Labour Law), and with the fundamental right of access to justice, provided for in paragraph (1) of Article 62 of the Constitution of the Republic of Mozambique? The analysis developed allows an affirmative and well-founded answer to be formulated: the presumption is constitutionally compatible with both principles, provided it is interpreted and applied in accordance with the Mozambican labour-law system taken as a whole.

The present study has shown that this reconciliation is not accidental, but results from a clear evolutionary path – both legislative and jurisprudential – that has progressively shaped the presumption as an institute. It has shown that the presumption did not emerge abruptly, but is the product of gradual construction, in which the legislature has adjusted the regime so as to reconcile it with the structuring principles of labour law – the non-waivability of employees’ rights and the fundamental right of access to justice.

This conclusion rests on four interdependent lines of argument developed throughout the article. First, it was shown that the presumption operates exclusively in the post-contractual sphere: its underlying fact – receipt of the compensation – occurs after the employment bond has been extinguished, at a point when legal subordination has already ceased and the employee regains full autonomy to dispose of the credits owed to him. The principle of the non-waivability of labour rights is intended to protect the employee during the currency of the contract, a phase in which the asymmetry of power is structural; once the relationship has terminated, that rationale is exhausted, and the employee may freely dispose of the credits owed to him. The presumption thus does not interfere with the sphere of protection that the principle of non-waivability seeks to safeguard.

Second, it was shown that the fundamental right of access to justice is not compromised by the presumption. Paragraph (7) of Article 142 performs an essential constitutional safeguarding function: by expressly allowing rebuttal through challenge of the just cause, the legislature ensured that receipt of the compensation does not amount to a definitive and irrevocable waiver of the right of action. The employee retains the right to submit the dismissal to judicial review – it being sufficient, within the six-month time limit provided for in paragraph (4) of Article 146, to challenge the existence of the just cause. The presumption does not close the courthouse doors; rather, it delimits the procedural conditions under which access to that review may be exercised, which is constitutionally permissible.

Third, the jurisprudential analysis demonstrated the consolidation of a coherent approach on the part of the Supreme Court of Mozambique: Judgments No. 15/2004-L, 163/05-L, and 37/25-L progressively establish that receipt of the compensation without express reservation constitutes tacit acceptance of the termination and its grounds, that the challenge must bear on the existence of the just cause and not merely on formal defects, and that the absence of a timely challenge definitively consolidates the termination. This approach is consistent with the principles of good faith and the prohibition of contradictory conduct (venire contra factum proprium), and finds a parallel in the case law of Portugal and Cape Verde, which enshrine structurally similar solutions.

Fourth, the comparative-law analysis revealed that the Mozambican model forms part of a Lusophone trend towards recognising the conclusive force of receipt of compensation: Portugal and Cape Verde enshrine rebuttable statutory presumptions, set aside through return of the compensation; Angola and Brazil, although without an express statutory presumption, jurisprudentially recognise the relevance of receipt as conclusive conduct. The Mozambican regime is distinguished by its choice of a rebuttable presumption (iuris tantum) that is set aside through a substantive route – by challenging the just cause – rather than through a pecuniary route, as in Portugal or Cape Verde. This is a legislative choice that privileges the discussion of the merits over financial stability, with full constitutional backing.

In this connection, and de lege ferenda, it is proposed that a future legislative revision consider enshrining an express duty of information, requiring the employer, at the time of payment of the compensation, to notify the employee in writing of the right to challenge the just cause and of the statutory time limit for doing so. Such a mechanism would strengthen the effectiveness of protection without compromising the legal certainty that the presumption is intended to guarantee, and would bring the Mozambican regime closer to international standards for the protection of employees at the time of termination of the employment contract.

 

BIBLIOGRAPHY

1. Doctrine

ALMEIDA, António Francisco, Direito do Trabalho Angolano, Kapa Edições, 2018, Luanda.

AMADO, João Leal, Contrato de Trabalho, Coimbra Editora, 10^th ed., 2009.

ANDRADE, Ana Margarida Faria, A Prova Por Presunção no Direito Civil e Processual Civil, Lisbon, 2016. Available at: https://repositorio.grupoautonoma.pt/server/api/core/bitstreams/8ae7ceb8-2d57-422e-9bfb-aa5f8d334475/content. Accessed 12 May 2026.

EGÍDIO, Baltazar Domingos, Direito do Trabalho – Situações Individuais de Trabalho, Deanpoint Bd, Vol. I, 2017.

FERNANDES, António Monteiro, Direito do Trabalho, 14^th ed., Coimbra, Almedina, 2009.

LEITE, Jorge, Direito do Trabalho – Notas Sumárias, RED – Revista Electrónica de Direito I Ad Perpetuam Rei Memoriam, Porto, 2016. Available at: https://repositorio-aberto.up.pt/bitstream/10216/87373/2/164464.pdf. Accessed 9 June 2026.

PEDRO, Albano, Manual de Direito Laboral Angolano, 5^th ed., Editora Luanda, 2019.

TIMBANE, Tomás Luís, A Rescisão Unilateral do Contrato de Trabalho Com Justa Causa no Ordenamento Jurídico Moçambicano, Master’s dissertation, Eduardo Mondlane University – Faculdade de Direito, 2005.

2. Legislation

2.1. National

Law No. 1/2018, of 12 June: Punctual Revision of the Constitution of the Republic of Mozambique, B.R., 12 June 2018, Series I – No. 115.

Law No. 8/98, of 20 July: Approves the Labour Law, B.R., 20 July 1998, Series I – No. 28.

Law No. 23/2007, of 1 August: Approves the Labour Law and repeals Law No. 8/98, of 20 July, B.R., 1 August 2007, Series I – No. 31.

Law No. 13/2023, of 25 August: Approves the Labour Law and repeals Law No. 23/2007, of 1 August, B.R., 25 August 2023, Series I – No. 165.

Decree-Law No. 47344: Approves the Civil Code, 18 December 1966, B.O., 18 December 1967, Series I, No. 50.

Ordinance No. 22869, extending the Portuguese Civil Code to Mozambique, D.G., 4 September 1967, Series I – No. 206.

2.3. Foreign

Law No. 12/23, of 27 December: Approves the Angolan General Labour Law and repeals Law No. 7/15 of June, Rectification No. 15/15, of 2 October, as well as all provisions contrary thereto, D.R., 27 December 2023, Series I – No. 245.

Decree-Law No. 5/2007, of 16 October: Cape Verdean Labour Code, B.O., 16 October 2007, Series I – No. 37.

Legislative Decree No. 1/2016, of 26 January: Cape Verdean Labour Reform, B.O., 3 February 2016, Series I – No. 7.

Law No. 13.467, of 13 July 2017: Amends the Consolidated Labour Laws approved by Decree-Law No. 5.452, of 1 May 1943, and Laws No. 6.019, of 3 January 1974; 8.036, of 11 May 1990; and 8.212, of 24 July 1991, in order to adapt the legislation to new labour relations.

Law No. 7/2009, of 12 February: Approves the revision of the Portuguese Labour Code, D.R., 12 February 2009, Series I – No. 30.

3. Case law

3.1. National – Supreme Court of Mozambique

TS-S, Case No. 163/05-L, Civil Section, of 1 October 2009.

TS-S, Case No. 15/04-L, of 5 March 2009.

TS-S, Case No. 37/25-L, of 3 June 2025.

3.2. Foreign

Évora Court of Appeal, Case No. 156/12.0TTSTB.E1, Portugal, 20 December 2012.

Évora Court of Appeal, Case No. 511/20.T8FAR.E1, Portugal, 2024.

Supreme Court of Justice, Appeal Case No. 107/2004, Cape Verde, 20 June 2021.

Supreme Court of Justice, Case No. 137/2016, Cape Verde, 15 March 2023.

Supreme Court of Justice, Case No. 220-2015, Cape Verde, 31 July 2023.

Superior Labour Court-RR, Case No. 11644-98.2020.5.15.0129, Brasília, 6 September 2022.

Superior Labour Court, Case No. 1000101-98.2018.5.02.0069, Brazil, DEJT of 30 January 2026.

Superior Labour Court of Brazil, Precedent (Súmula) No. 330 (effects of trade-union ratification), Brazil, 21 November 2003.

 

(1) Article 21 of Law No. 13/2023: Approves the Labour Law and repeals Law No. 23/2007, of 1 August, B.R., 25 August 2023, Series I – No. 165.

(2) FERNANDES, António Monteiro, Direito do Trabalho, Almedina, Coimbra, 2009, p. 182.

(3) AMADO, João Leal, Contrato de Trabalho – À luz do novo Código do Trabalho, Coimbra Editora, 2009, p. 56.

(4) Idem, ibidem.

(5) LEITE, Jorge, Direito do Trabalho – Notas Sumárias, Porto, 2016, p. 5. Available at: https://repositorio-aberto.up.pt/bitstream/10216/87373/2/164464.pdf. Accessed 9 June 2026.

(6) Paragraph (1) of Article 135 of Law No. 13/2023, of 25 August.

(7) A disciplinary mode of termination, initiated by the employer under Article 69 of Law No. 13/2023, of 25 August.

(8) TIMBANE, Tomás Luís, A rescisão unilateral do contrato de trabalho com justa causa no ordenamento jurídico moçambicano, Master’s dissertation, Eduardo Mondlane University – Faculdade de Direito, 2005, p. 45.

(9) As regards the employee, there are likewise modes of termination beyond his control, namely termination with objective just cause occurring in cases of compliance with legal obligations incompatible with continuing in service, and termination occurring in cases of delay in, or difficulty with, payment of remuneration. In all these situations, the contract terminates because of a cause unrelated to either the enterprise or the employee. Cf. TIMBANE, Tomás Luís, op. cit., p. 46.

(10) TIMBANE, Tomás Luís, op. cit., p. 46.

(11) Idem, ibidem.

(12) Notice is a unilateral declaration of intent aimed at terminating the contract without the need to invoke just cause and, as a rule, without giving rise to a right to indemnification. Under the general regime, only the employee may give notice, by written communication and subject to the notice period, under paragraph (1) of Article 140 of the Labour Law. During the probationary period, however, notice may be given by either party, without justification and with a reduced notice period (Article 51 of the Labour Law), this being the only situation in which the law permits the employer to give notice without just cause.

(13) “Employment relationship” means the set of conduct, rights, and duties established between the employer and the employee, relating to the activity performed, or to be performed, and the manner in which such performance is to be carried out, under paragraph (2) of Article 22 of Law No. 13/2023 of 25 August.

(14) Among the rights that subsist or arise from termination: (i) the right to indemnification – owed in cases of unlawful termination or resignation with just cause attributable to the employer, under Articles 138, paragraph (5), and 146, paragraph (2), of the Labour Law; (ii) the right to untaken holidays and the corresponding allowance; (iii) the right to compensation – owed in cases of lawful termination on the employer’s initiative, namely collective dismissal, elimination of the post, or unsuitability, under Article 142 of the Labour Law. The distinction is essential: indemnification presupposes unlawfulness and seeks to redress harm; compensation does not presuppose unlawfulness and seeks only to mitigate the economic impact of the loss of employment.

(15) The duties that are extinguished are: (i) the principal duty to perform the employment activity; (ii) the principal duty to pay remuneration; (iii) ancillary duties – attendance, punctuality, obedience; (iv) secondary duties – professional confidentiality, loyalty.

(16) Paragraph (3) of Article 135 of Law No. 13/2023, of 25 August.

(17) TIMBANE, Tomás Luís, op. cit., p. 62.

(18) NETO, Abílio, Processo Disciplinar e Despedimentos, Jurisprudência e Despedimentos, Edifirum, Lisbon, 2004, apud CAMPOS, Paulo Alexandre da Silva, A Compensação por Despedimento, Faculty of Law – Lisbon, 2013, p. 39.

(19) Law No. 8/98, approving the Labour Law, B.R., 20 July, Series I – No. 28, correctly used the term “compensation” to designate payments associated with lawful terminations; Law No. 13/2023, of 25 August, employs, in paragraph (4) and (5), the term “indemnification” for situations that do not involve unlawfulness. However, paragraph (6) of Article 142 itself corrects this imprecision by expressly referring to the payments under paragraphs (4) and (5) as “compensation,” revealing that the legislature’s intention is the same as that already established since 1998: to distinguish indemnification (unlawfulness) from compensation (lawful termination).

(20) EGÍDIO, Baltazar Domingos, Direito do Trabalho – Situações Individuais de Trabalho, Deanpoint Bd, Vol. I, 2017, p. 109.

(21) This principle is sometimes referred to as the “principle of the non-renunciation of employees’ rights.”

(22) EGÍDIO, Baltazar Domingos, op. cit., p. 110.

(23) The employee cannot validly waive legally enshrined rights, on pain of compromising the very effectiveness of protective labour legislation. This principle is intended to correct the structural inequality between employer and employee.

(24) Article 26 of Law No. 8/85, approving the Labour Law, B.R., 14 December 1985, Series I – No. 50.

(25) Article 28 of Law No. 8/85, of 14 December.

(26) Article 29 of Law No. 8/85, of 14 December.

(27) An embryonic tendency to link payment of pecuniary amounts to the stabilisation of contractual termination may be identified in Law No. 8/85, of 14 December, insofar as the statute provided for indemnification linked to the rupture and established that “the legal effects of termination of the employment contract arise from the moment the other contracting party becomes aware of it” (Article 30, paragraph (1), of Law No. 8/85, of 14 December). Although this did not yet amount to a statutory presumption, this framework already revealed a conceptual proximity between termination, payment, and the consolidation of the legal effects of termination.

(28) Iuris et de iure means “of right and by right” – this is a presumption that does not admit proof to the contrary, and may therefore be regarded as an irrebuttable presumption.

(29) Paragraph (6) of Article 131 of Law No. 23/2007, of 1 August.

(30) Paragraph (7) of Article 131 of Law No. 23/2007, of 1 August.

(31) Article 349 of Decree-Law No. 47344: approving the Civil Code, B.O., 18/12/1967, Series I – No. 50.

(32) “The iuris tantum presumption arises in cases where the law admits proof to the contrary, capable of discrediting and defeating the presumption. It is for this reason that such presumptions are regarded as easily rebuttable and relative.” LEITÃO, Helder Martins, Da Instrução em Processo Civil: das Provas, 4th ed., Porto, Ecla Editora, 1991, p. 46, apud ANDRADE, Ana Margarida Faria, A Prova Por Presunção no Direito Civil e Processual Civil, Universidade Autónoma de Lisboa Luís de Camões, Lisbon, 2016, p. 15. Available at: https://repositorio.grupoautonoma.pt/server/api/core/bitstreams/8ae7ceb8-2d57-422e-9bfb-aa5f8d334475/content. Accessed 12 May 2026.

(33) “Statutory presumptions are those provided for by, and flowing directly from, the law itself. In this type of presumption, the finding of one fact serves to prove another fact, by reason of the relationship between the two facts, thereby constraining the principle of free assessment of evidence.” LEITÃO, Helder Martins, Da Instrução em Processo Civil: das Provas, 4th ed., Porto, Ecla Editora, 1991, p. 46, apud ANDRADE, Ana Margarida Faria, op. cit., p. 16.

(34) TS-S, Case No. 15/04-L, Action arising from the employment contract, 5 March 2009.

(35) TS-S, Case No. 163/05-L, Challenge to just cause for dismissal, 1 October 2009.

(36) TS-S, Case No. 37/25-L, Interlocutory appeal, 3 June 2025.

(37) Although the judgment was handed down in 2025, the reference to Article 31 (rather than Article 142 of the new Labour Law) is explained by the fact that the termination of the employment contract under analysis occurred before the entry into force of Law No. 13/2023, of 25 August, so that, by virtue of the principle tempus regit actum, Law No. 23/2007, of 1 August – the law under which the presumption was enshrined in Article 131 – remained applicable.

(38) “The action challenging the dismissal must be brought within six months from the date of the dismissal,” under paragraph (2) of Article 76, read together with paragraph (4) of Article 146, all of Law No. 13/2023, of 25 August.

(39) More recent case law (Case No. 37/25-L) reinforces that challenging only the formalities after receiving the compensation violates the principle of good faith and the prohibition of contradictory conduct (venire contra factum proprium).

(40) Law No. 7/2009, of 12 February, approving the revision of the Portuguese Labour Code, D.R., 12 February 2009, Series I – No. 30.

(41) Paragraph (4) of Article 366 of Law No. 7/2009, of 12 February.

(42) Paragraph (5) of Article 366 of Law No. 7/2009, of 12 February.

(43) TST, Case No. 1000101-98.2018.5.02.0069, DEJT of 30/01/2026.

(44) TST-RR, Case No. 11644-98.2020.5.15.0129, of 6 September 2022.

(45) ALMEIDA, António Francisco, Direito do Trabalho Angolano, Kapa Edições, 2018, Luanda, pp. 241-245.

(46) PEDRO, Albano, Manual de Direito Laboral Angolano, Editora Luanda, 5^th ed., 2019, pp. 312-318.