Denial of early retirement and the relief contract according to the Social Security. The INSS (Social Security), when faced with the early retirement of a relief worker, maintains that it must be
be materialized by means of objective dismissal. This is the ruling of the Supreme Court in the Social Chamber under Ruling 693/2022 of July 22, 2022.
Early retirement and the relief contract
The hiring of an employee under the contractual framework of relief contracts is carried out with the purpose of replacing an employee who is close to or expresses his intention to take early retirement.
In the analyzed judgment of the Social Chamber of the Supreme Court, the indefinite-term contract of the plaintiff did not condition the continuation of the granting of the early retirement pension to the relieved worker. For this reason, the refusal of the latter does not result in the employee being obliged to terminate the employee’s employment relationship.
It is possible that it may be necessary to provide full-time work for both contractions. And that, therefore, they can coexist at the same time. Otherwise, the company could terminate the reliever’s contract. However, since it is due to causes beyond the company’s control, it must be carried out by means of objective dismissal. Failure to do so would result in a declaration of unfair dismissal.
This practice is the one that has been carried out in cases of the same nature. Such is the case of the loss of the work permit of foreign workers or the lack of the necessary qualifications to support the task or the object of the contract.
Therefore, the termination of the employment relationship of the relieved worker due to the refusal by the INSS of the request for partial early retirement of the person being replaced must be managed by means of objective dismissal.