Procedural labour-law – the right to actually be given work to do; the burden of proof.
Right to work
Right to be given work to do
Principle of the dignity of the human person
Principle that fundamental rights be implemented to their maximum extent
Principle that fundamental rights be restricted as little as possible
Principle of proportionality
Burden of proof.
RULING No. 465/12
1 of October of 2012
The norm which is derived from precepts contained in the Civil Code and the Code of Civil Procedure and under which, in procedural labour-law, the regime governing the burden of proof applies in such a way that the burden of proving a breach of the worker’s right to actually be given work to do lies with him/her, is not unconstitutional.
Although labour relations are marked by the fact that one of their subjects is in a position of special vulnerability, and although it is the constitutional order’s intention to protect the weaker party in the labour relationship, this is not enough to warrant an interpretation whereby, within the system governing constitutional-law assets, the value “work/labour” occupies a hierarchical position in relation to other assets that would on its own justify reversing the general principles of the burden of proof in labour-law proceedings. As the pertinent Civil Code provision suggests, the ordinary legislator can opt to reverse the burden of proof. It falls to this legislator to weigh up how to reconcile different constitutional assets that may conflict with one another in certain circumstances. However, there is nothing in the Constitution that would allow us to conclude that, whatever the ordinary law does or doesn’t say and solely as a result of the protection the constitutional order affords to the condition of worker, such a reversal exists in labour-law proceedings.
The present case involved an appeal by a private individual who had been dismissed by a company. The worker alleged that the employer had injured his right to actually be given work to do. He said that the court a quo had applied the Civil Code regime regarding the burden of proof, under which the party who invokes a right is the one who has to provide evidence of the facts that constitute the alleged right. The appellant considered that, when applied to the labour law, this regime was unconstitutional because it violated: the principle of the dignity of the human person; the principle that fundamental rights must be implemented to their maximum extent; the right to fair process; and the right that work be organised under socially dignifying conditions, in such a way as to provide the worker with personal fulfilment. These rights in turn imply the worker’s right to actually be given work to do. The appellant argued that in such cases the Constitution requires a reversal of the burden of proof, because this right to effective occupation is a fundamental right, which is itself derived from the right to work, and also because “work/labour” is a value that generally possesses a special constitutional-law protection.
These days there is no doubt that the worker’s right to actually be given work to do exists in the Portuguese legal order, at the ordinary legislation level. This is demonstrated by the current Labour Code, which prohibits employers from unjustifiably preventing workers from effectively working. The question of whether this right can be said to possess the substantial status of a constitutionally protected fundamental right, notwithstanding the fact that its existence is only formally explicit in ordinary law, is a different matter.
A certain current of legal doctrine says that the right to effectively engage in the activity that corresponds to a post at work is included (alongside the freedom to look for work and the right to equality in access to positions, types of work and occupational categories) within the protective scope of the constitutional norm that enshrines the right to work. Even though, in terms of the text of the Constitution, this right is set out in the chapter on economic, social and cultural rights, its complex structure includes subjective legal positions that are close to those of constitutional rights, freedoms and guarantees, because they possess a negative or defensive dimension that characterises the latter.
The Constitutional Court emphasised that the issue here was not the existence of fundamental rights that are implicitly derived from the text of the Constitution without there being any explicit formal reference to them therein. In its past jurisprudence, the Court has also pointed out that there are norms linked to social rights, the scope of whose protection includes subjective dimensions whose structure is identical to that of constitutional rights, freedoms and guarantees.
There can be no doubt that when the Constitution enshrines the right to work, it implicitly also enshrines the worker’s right to actually be given work to do and provides special protection to both work/labour and the condition of the person who does that work and provides that labour. The various constitutional norms that talk about the right to work demonstrate that the constitutional order does not see the activity of working persons strictly as a mere instrument for economic survival; it also attaches value to that activity as a precondition for the affirmation of both those persons’ dignity and their autonomy.
However, this does not necessarily mean that the Constitution requires the fair process in labour-law proceedings in which the issue includes an alleged violation of the worker’s right for work to be organised under socially dignifying conditions, in such a way as to ensure his/her personal fulfilment, to be a process in which the general rules regarding the burden of proof are reversed.
As the appellant argued, the system of fundamental rights possesses a unity of purpose that is organised around the idea of personal dignity. This is precisely why it is not the place of an interpreter of the Constitution to establish rigid, abstract hierarchies of the various values and legal assets that are protected within this system. Work/labour is not the only legal asset that receives the system’s protection; there are other values, all of which impose requirements on the infra-constitutional order. Examples include the integrity of the human person, freedom of thought, expression and artistic creation, and the privacy of personal life. If one were to follow the appellant’s thesis in relation to all these constitutionally protected assets (that, in proceedings in which a party invoked a right that was linked to these assets, the constitutional protection afforded to them would automatically entail a reversal of the burden of proof), it would be difficult to reconcile the way in which the procedural rules would have to be shaped on the one hand, with the requirements for legal security demanded by the constitutional principles of the democratic state based on the rule of law and of access to the law and effective jurisdictional protection on the other. There is no reason to conclude that in this regard the value or asset “work/labour” deserves preferential or exceptional treatment.
Rulings nos. 372/91 (17-10-1991), 581/95 (31-10-1995), 683/99 (21-12-1999), 509/02 (19-12-2002), and 632/08 (23-12-2008).