A possibilidade de inclusão do direito à indemnização na caducidade do contrato de trabalho por reforma do trabalhador não inscrito no sistema de segurança social

Abstract

The traditional definition of an employment contract is "an agreement of wills—whether verbal or written, and entered into either tacitly or expressly—between an employee and an employer, who are the subjects of rights and duties in this continuing employment relationship. The employee must be a natural person, while the employer may be a natural person, a legal entity, or an unincorporated entity. The employee provides services to a recipient (the employer) on a strictly personal, non-fungible, and non-occasional basis, subject to legal subordination and in exchange for remuneration. The contract is characterized as being private in nature, consensual, onerous, and synallagmatic. In conjunction with the preceding definition, the Mozambican legislator establishes the concept of an employment contract as: 'the agreement whereby a person—the worker—undertakes to perform work for another person—the employer—under the latter's authority and direction, in exchange for remuneration.' This concept highlights the essential features of the employment relationship—namely the performance of work, legal subordination, and remuneration—thereby distinguishing the employment contract from other related contractual arrangements, such as the contract for the provision of services (service contract) provided for in Article 1154 of the Civil Code. The latter stipulates: 'A contract for the provision of services is one in which one party undertakes to provide the other with a specific result of their intellectual or manual labor, with or without remuneration.' The central and decisive element distinguishing an employment contract from a contract for the provision of services is legal subordination; this element holds particular significance within the Mozambican legal system for the correct classification of the relationship between the parties. In an employment contract, the worker performs their work on a personal, continuous, and subordinate basis," ...being integrated into the employer's organization. Legal subordination manifests as the worker's subjection to the employer's directive power—that is, the authority to define, direct, regulate, and discipline work activity, as established in Article 63 of the LT. This directive power determines the manner, timing, and location of the work, as well as the supervision of its execution. The worker does not act autonomously but rather under orders and instructions, and is required to adhere to schedules and internal rules. Remuneration is regular and periodic in nature, owed simply for making one's labor available, regardless of the specific result achieved. Conversely, in a service provision contract—as defined in Article 1154 of the Civil Code—legal subordination is absent. The service provider acts with technical, functional, and organizational autonomy and is not subject to the service recipient's disciplinary authority. The defining characteristic of this contract is the obligation to achieve a specific result, with the provider free to choose the means, method, and timing of the work's execution