TST secures an employee's right, while serving paid-in-lieu notice, to join a PDV launched after her dismissal

On the docket: the TST's 6th Panel ruled on the Appeal for Review with Interlocutory Appeal RRAg-0011182-94.2022.5.15.0122, reported by Justice Augusto César, recognizing a former employee's right to join a Voluntary Severance Plan the company launched days after her dismissal, while she was still serving her paid-in-lieu notice period. The reasoning is direct: the notice period, even when paid in lieu, remains part of the employment contract for all legal purposes, which includes the right to take part in benefits and plans offered to anyone still formally employed during that period.

This is directly relevant to anyone planning mass layoffs or voluntary-severance programs: a company that launches a voluntary-enrollment plan cannot, in practice, exclude from it employees serving paid-in-lieu notice during the same window, even if the original intent was to restrict the program to those still active on payroll. The risk of treating these groups differently, without a clear provision in the plan's own rules, is a ruling ordering the PDV benefits to be extended to employees who had already been dismissed during that period.

The voluntary-enrollment plan's rules are the central piece for reducing that risk: clearly defining, from the launch, who may join, within what time window, and whether employees serving notice, whether worked or paid in lieu, fall inside or outside the eligible group, with a documented justification for that choice.

Did the rules of your company's last voluntary-severance program clearly state, in writing, what happens to employees serving notice at the time of launch?