Amnesty Law and disciplinary offenses in private companies

After the Pope’s visit in August 2023, a regime of pardon and amnesty for offenses was established through Law 38-A/2023 of August 2 (“Law 38-A/2023”), following the pattern of previous visits. For more information, see our previous publication on the Amnesty Law.

Article 6 of Law 38-A/2023 states the following:

“Disciplinary and military disciplinary offenses that do not simultaneously qualify as non-amnestied criminal offenses under this law and whose penalty—in both cases—is no more than suspension or disciplinary imprisonment will be amnestied.”

The wording of this legal provision has caused uncertainty regarding its application in the workplace, particularly in cases of labor disciplinary offenses committed by employees of private companies.

However, the ruling of January 24, 2024 (Case 778/23.3T8PDL-A.L1-4) by the Lisbon Court of Appeal clarified the interpretation of article 6 of Law 38-A/2023. Specifically, the court ruled that the Amnesty Law does not apply to labor disciplinary offenses committed by employees of private employers.

The Lisbon Court of Appeal stated that, in recent history, “amnesty laws have never applied to labor disciplinary offenses committed by employees of private employers.” The respective wording of these laws has always been clear on this matter: the state does not have the power to exercise a right that does not belong to it and is held by those who manage companies.

The court concluded that granting amnesty to labor offenses “would interfere with the management and organization of private companies, which goes against the constitutional right to free enterprise and freedom of business initiative and organization.” Therefore, the court ruled that the Amnesty Law does not apply to labor offenses committed by employees of private employers.

We agree with the Lisbon Court of Appeal’s reasoning that applying amnesty to private labor offenses would violate these constitutionally protected rights.

Employers have autonomy when it comes to applying disciplinary penalties to their employees, and the state cannot interfere with this power. Therefore, it is unjustifiable for the state to grant amnesty to private labor offenses, as this would violate employers’ autonomy.

The Constitutional Court will likely review the constitutionality of applying Law 38-A/2023 to labor offenses committed by employees of private employers, so we must await its decision on the matter.