(Translated from Portuguese)
(Seal: Judicial Court of the County of ... - Central Section )

To

Appeals

Honorable Judge of the
Judicial Court of the County of ...
...

Proceedings .....

......, Defendant in the above referred proceedings, hereby requests in compliance with Article 2, no.: 2 of Law-decree no.: [...], of November 1st, that the original of the statement sent yesterday, ...., through fax, be attached to the proceedings.
Awaits your approval,
The Lawyer,
.....

Proceedings no.: .....
4th Court
Ordinary Action

To
Honorable Judge of the
Judicial Court of the County of [....]
...

The ....., in the terms of the above referred proceedings, hereby resists the claim,
In the following terms and upon the following grounds:

A -ESTOPPEL:
I - Voidance of just cause:
First
The present proceedings are a clear example of disputing in bad faith.
Second
The Plaintiff claims facts that he knows to be unfounded, he purposely twists the truth and manipulates and distorts events, adjusting them to fit the "thesis" that he wishes would prevail with this Court, with the ultimate purpose to claim for himself what he knows he has no right to claim.
Third
However, even before we contest the groundless matters alleged by the Plaintiff, it is important to refer, first of all, the anti-judicial nature of the situation which undoubtedly will affect the normal development of the present dispute and most certainly bring about its dismissal.
Fourth
In fact, under the Plaintiff's Particulars of Claim, the ground of action - wherein emerges the alleged right which is supposed to be protected - consists of an alleged noncompliance on the part of..... towards the employment agreement referred to under point one of his Particulars of Claim - a copy thereof was attached thereto as doc. 1.
Fifth
The same procedural document states that due to the alleged contractual noncompliance on the part of the Defendant, the Plaintiff rescinded his agreement with ..... alleging just cause under the provisions of Article 46 of Law-decree no.: [...] of April 3rd, with the amendments introduced by Law-decree no.: [...] of July 9th.
Sixth
However, by doing so, he acted in contravention with the most elementary good faith, as norm of social and contractual conduct, and in an astonishing display of disloyalty and lack of honesty;
Seventh
The Plaintiff claims that he called [the defendant's] attention to several situations of contractual noncompliance and alterations to the conditions agreed under the employment agreement.
Eighth
And also, that in spite of the alleged contractual noncompliance on the part of [the defendant] he tolerated it at his own expense, because he was sensible to the arguments invoked by the Defendant and its request for cooperation expressed by letter ….", doc. No.: 5 with the Particulars of Claim.
Ninth
The Plaintiff did not tolerate anything, he remained with [the defendant] because he wanted to, because it was of his own interest to improve his curriculum vitae, as the more hours he would fly the better.
Tenth
Furthermore, in the Particulars of Claim, the Plaintiff brings out a list of facts that in his perspective justify his decision to rescind the agreement, namely - Point 14: right of leave violation in the year of 1999; - Point 17: failure to update his salary in 1998 and 1999; - Point 19: failure on punctual payment of over-time during 1998 and 1999; - Point 32: violation of his monthly rest period; - Point 37: failure to supply the Plaintiff with a seat in Business class [...]
Eleventh
Now, before so extensive list of violations to contractual conditions, the immediate question that rises is why would the Plaintiff remain in service with ... ... after so many successive alleged violations of the employment agreement?
Twelfth
One of two options:
i) Either the alleged violations of the employment agreement were indeed serious and immediately became impossible to maintain the employment;
ii) Or the alleged violations of the employment agreement were not so serious and allowed, nevertheless, the contractual link between the parties to be kept.
Thirteenth
The case in the proceedings, as shown by the inertia of the Plaintiff in calling for the immediate rescission of the employment agreement signed with the Defendant, there should be no doubt that he did not consider the alleged violations of the employment agreement so serious as to make it impossible to keep the employment.
Fourteenth
In effect, the professed tolerance, inertia, acceptance and conformity with the situation shows, unequivocally, that the Plaintiff did not consider the alleged contractual noncompliance on the part of the Defendant, a fact or circumstance so serious as to make it practically impossible to keep the employment relation.
Fifteenth
As lectured by Dr. .... in his brief notes "The termination of Employment Agreement in function of Law-decree [...]": article 43, number 2, brings out two requirements for claim of just cause in the rescission of employment agreements - gravity and impossibility.
Sixteenth
Dr. .... also wrote in the same work that these two requirements sustain the implicit idea of non-obligation, that is, if the employment relation becomes practically impossible, the employee is not obliged to keep the contractual functions object of the agreement.
Seventeenth
Furthermore, Dr. .....wrote that even though the legislator would not expressly impose a contemporaneous aspect on the fact or circumstance that constitute just cause, it is reasonable to request that once the fact which supposedly originated just cause has occurred, the interested party terminates the employment relation within a reasonable term after the occurrence of such fact.
Eighteenth
Now, as revealed in the proceedings, the reaction of the Plaintiff was anything but contemporaneous, because, in his perspective, serious violations to the employment agreement had occurred since ... and only in February .... he decided to rescind the agreement.
Nineteenth
Whereof one may conclude, by contrasting the facts with the law and the doctrinal content thereof, that the employment relation was possible and consequently there was no just cause for the rescission of the employment agreement by the Plaintiff.
Twentieth
Whereof the invoked just cause in the rescission of the agreement signed with the Defendant, was but a mere maneuver of the Plaintiff to move to another company enjoying the credentials obtained while serving the Defendant who paid for the conditions which allow him to get them.
Twenty-first
[...]

II. ABUSE OF RIGHT:
Twenty-second
Indeed, the present action - if the claim for nonexistence of just cause is not sustained, which with all due respect we admit just for the sake of reasoning - constitutes an effective abuse of right, which we hereby invoke.
Twenty-third
The behavior of the Plaintiff is manifestly in excess of the limits imposed by the principles of good faith, good customs and the object of such supposed right (Article 327 of the Civil Code), wherefore must be stopped by the Court.
Twenty-forth
In truth, the abuse of right occurs when someone uses a right in contradiction with its own previous behavior (the Plaintiff's) in which, in face of the law, good customs and good faith, the other party (the Defendant) had trusted, legitimating the conviction that the same would not be used.
Twenty-fifth
Thus, the Plaintiff's claim substantiates a contradictory conduct in face of his previous acts, thus manifesting a "venire contra factum proprium".
Twenty-six
As a mere example, let us consider the following:
Twenty-seventh
The fact that the Plaintiff signed on April 1st, [year], the agreement entitled "Captain Bond Agreement", when at such time, he already considered that the Defendant owed him the amount of $...corresponding to unpaid over-time (doc no.: 2, attached to the Particulars of Claim)
Twenty-eighth
The fact that the Plaintiff never protested, much less invoked any violation to the contractual conditions in the many meetings he held with the Defendant's representatives;
Twenty-ninth
The fact that the Plaintiff left the Defendant's service after obtaining the credentials he needed [...];
Thirtieth
The fact that he rescinded the employment agreement with the Defendant, alleging just cause, when it was common knowledge that he had been searching for a long time for a placement in another company, in manifest violation of the duties of loyalty and consideration towards the employer.
Thirty-first
All this in complete disregard of his own word and commitment, revealing the mental reservation wherewith he acted, in manifest situation of "venire contra factum proprium".
Thirty-second
Now, since the abuse of right is equivalent to voidance of right, its use must generate the same legal consequences that result when a person performs an act that he does not have the right to practice.
Thirty-third
Whereof this Court, considering the anti-judicial nature and the statutory illegality involving the abuse of right contained in the Particulars of Claim, must, with due respect, oppose the use of such right by the Plaintiff in the same manner that the Court would oppose any action void of right, any illicit act (or omission) - which we claim, with the due legal consequences.

B - BY CONTENTION:
Thirty-fourth
However, in caution and defense of the truth, we also are obliged to add,
Thirty-fifth
The facts under point 1, 4 and 7 in the Particulars of Claim are accepted but the remaining points are rejected because they do not express the reality of the facts.
Thirty-sixth
In effect, it is true that the Plaintiff had a contractual link with the Defendant, expressed in an employment agreement signed on ... ...., ... (see Doc. 1, with the Particulars of Claim).
Thirty-seventh
That the Plaintiff, through letter addressed to the Defendant's Personnel Director, dated .. ..., ..., terminated his employment agreement alleging just cause for the rescission under Article 46, subparagraph a), b) and c) of Law-decree [...], (see Doc. No.: 3 with the Particulars of Claim).
Thirty-eighth
Nevertheless, the Defendant cared enough to inform the Plaintiff of its position through letter dated March .., [year].
Thirty-ninth
Thus, it informed the Plaintiff that he did not had "(…) the right to call on the rescission clause because the company was not (…)" in any default with him.
Fortieth
The Plaintiff, in his Particulars of Claim, alleged that, for several times, he called the Defendant's attention to situations wherewith he did not agree and that substantiate, in his opinion, manifest contractual noncompliance.
Forty-first
However, it seems strange, that throughout several meetings held with representatives of the Defendant, wherein several employment contractual issues were discussed in the presence of the Plaintiff, he never presented the matters now brought up.

III - CONCERNING VIOLATION TO THE RIGHT OF LEAVE IN THE YEAR OF [...]
Forty-second
The Plaintiff alleges, in what concerns Clause 4 of his employment agreement, that in ..., due to impediment or decision of the employer he only took eleven days leave, with ten days remaining to enjoy, which corresponds to a credit of $..,........
Forty-third
It must be stressed though that the Plaintiff did not attach to his Particulars of Claim any document proving that he did not enjoy 10 days leave because of the Defendant's impediment.
Forty-fourth
Meanwhile, a careful analysis of the Plaintiff's individual process allows us to conclude that he only submitted one application for leave for a total of 11 days, wherefore the remaining 10 days were left to his own initiative (see doc. No.: 2, attached hereto).
Forty-fifth
Now, according to the Defendant's work procedures, in order for an employee to take leave he is obliged to fill up the relevant form.
Forty-sixth
Thus, the Plaintiff cannot blame the Defendant for violating his right to take leave.
Forty-seventh
The Plaintiff did not enjoy the remaining 10 days of leave because he never requested the scheduling thereof.
Forty-eighth
In consequence the Plaintiff alleges also that the Defendant is due to pay him the triple amount of the remuneration corresponding to the leave he did not take.
Forty-ninth
Once again, the Plaintiff distorts reality.
Fiftieth
In fact, with the salary corresponding to the month of February ..., the Defendant paid the amount of $..,..... corresponding to the leave not taken.
Fifty-first
And in what concerns the month of March ..., the Defendant made available to the Plaintiff, a check for the amount of $.... whereof in the slip attached to the check there was an item called "99 annual leave" for the amount of $... which concerns the payment of the rest of the remuneration corresponding to unused leave (see doc. No.: 3, attached hereto).
Fifty-second
[...]
Fifty-third
The payment due was effectively performed, however fractionated into two months for reasons of cash flow on the part of the Defendant. (see doc no.: 4, attached hereto).
Fifty-fourth
Thus, the Plaintiff should not blame the non-payment of untaken leave on the Defendant.
Fifty-fifth
Nevertheless, what indeed happened was that the Defendant issued the check in question to cover several payments, namely salaries, allowances, rent allowance and also unused leave (see doc. No.: 3).

[...]
[...]
[...]
[...]

i) CONCERNING THE VIOLATION OF ANNUAL REST PERIOD SCHEDULING
Seventy-second
The Plaintiff also alleges that the Defendant did not schedule, as it should, the annual rest period, with the minimum notice of 30 days, thus violating the provisions of Article 22, Law-decree no.: [...] , with the amendments introduced by Law-decree no.: [...] .
Seventy-third
Which does not correspond to the truth at all.
Seventy-fourth
In effect, every year the Defendant draws, publishes and displays - by the end of November - on a place visible to all and freely accessible to all employees of the company, the schedule for the annual rest relevant to the following year.
Seventy-fifth
Thus, towards the end of November ..., the Defendant drew and affixed on a visible place for all to see, the schedule of the annual rest for the calendar year of ....
Seventy-sixth
Thus, the Defendant incurred in no violation concerning this matter.

IV - CONCERNING THE FAILURE TO UPDATE THE SALARIES FOR THE YEAR OF ...
Seventy-seventh
The Plaintiff also claims that the Defendant violated clause 13 of his employment agreement because "(…) the same did not update, as it was supposed to, the Plaintiff's salary for the years of ... and ..., as provided under the employment agreement".
Seventy-eighth
It is provided in Clause thirteen under the item "Living Cost Adjustments", that "the date for revision of the annual increase and update related to the living cost is the [..]".
Seventy-ninth
Now, the true meaning of the referred clause of the agreement is that the Plaintiff would be eligible to benefit from an annual increase and living cost update, with retroactive effects, if the employer, the hereby Defendant, would deem fit to implement it.
Eightieth
It was not an absolute right of the Plaintiff, or an unconditional obligation of the Defendant, whereof it was up to the latter to decide for or against such increase.
Eighty-first
Actually, due to this abusive interpretation of the referred clause, the Defendant, in following agreements, decided to amend such clause to expressly convey that to increase or not the salaries is a facultative right.
Eighty-second
The letter attached by the Plaintiff, as document no.: 10, only reveals the concern of the Defendant in justifying the reason why it could not grant an annual increase and living cost update in that year, showing also respect for its employees.
Eighty-third
A concern that should not be deemed as a confession, since the Defendant was under no obligation to carry out such increase and update.
Eighty-fourth
On the other hand, in what concerns the living cost update, such would make sense only if .... would be under an inflationary trend, that is, a situation wherein the increase in living costs would determine adjustments to the "allowances" granted by the Defendant.
Eighty-fifth
Now, it is a fact of public knowledge, which waives any evidence, that in ..., for some years now, we live a deflationary trend, with generalized lowering in real estate prices and significant reduction in telephone, power supply and house rental costs.
Eighty-sixth
Inclusive, for several years now, ... civil workers have not been awarded any increase to their salaries.
Eighty-seventh
Whereof one may conclude, that the salary increase and the living cost update was dependent on the decision taken by the Defendant and the economic conjuncture.
Eighty-eighth
Thus, we rebut points 18 and 19 in the Particulars of Claim.

[...]

In these terms and other terms of the law that your Honor will certainly supply, the present opposition shall be sustained as proved and consequently,
1. The Defendant shall be discharged of the cause by the estoppel hereby presented; or in any case,
2. The Defendant shall be discharged of the Claim and the Plaintiff convicted to pay costs and due attorney's fees.
Finally, we request Your Honor, in compliance with the provisions of Article 90 of the Code of Civil Procedure, to notify the Plaintiff requesting that the translation of the documents written in the English language be attached to the proceedings.
Amount: as stated in the Particulars of Claim
Attachments: Power of Attorney and 9 documents
List of Witnesses:
....
The Lawyer ....
.

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