The Court of Appeal of Évora, in the decision handed down under case No. 570/20.7T8EVR.E1, decided that the message produced by the employee in a closed group of WhatsApp, where he vented about the organization of the company, criticizing it in terms rude, but without clearly and directly targeting anyone, does not constitute sufficient justification for his/her dismissal.

The Labour Code establishes in paragraph 1 of article 351 that constitutes cause for dismissal, the guilty behaviour of the employee which, due to its gravity and consequences, makes the continuation of the employment relationship immediately and practically impossible.

However, the Court of Appeal understood that, in the assessment of just cause, within the company's management framework, the degree of damage to the interests of the employer, the nature of the relationship between the parties or between the employee and his/her colleagues, must be considered, as well as other circumstances that are relevant in the case.

In this sense, the Court considered that the statements produced by the employee in the WhatsApp group do not have the same gravity as they would have been if they had been produced in the employee's workplace, so the Court understood that the employer could only apply to the employee a lighter sanction, but not dismissal. This understanding comes from the fact that there is a right to polite criticism. The Court considers that the way the employee expressed himself constitutes the exercise of the right to criticism in a reprehensible way.

In turn, the decision of the Court of Appeal of Évora, issued under case No. 747/18.5T8PTM.E, considers that messages exchanged between employees in a private and closed WhatsApp group cannot be used by the employer in a disciplinary procedure, as they are personal and private communications. In this sense, the Court concluded that the means of evidence used in the disciplinary procedure is null. It violates the fundamental right to reserve the intimacy of private life and the legal and constitutional protection of the confidentiality of the personal message.