Unjustified dismissal: STF maintains current rules – 05/27/2023 – Market

The Federal Supreme Court (STF) concluded this Friday (26) the judgment on the validity of a decree by then President Fernando Henrique Cardoso on the possibility of dismissal without just cause.

Although the analysis has ended, with a score of 6 to 5 for maintaining FHC’s decree, and thus maintaining current rules that allow dismissal without just cause, the result will only be made official next week with the publication of the result by the President of the STF .

The case, an ADI (Direct Action of Unconstitutionality), began to be processed by the STF in 1997. The norm deals with the legality of a decree canceling Brazil’s adherence to Convention 158 of the ILO (International Labor Organization).

This convention establishes criteria for terminating employment contracts on the initiative of the employer.

FHC’s decree dates back to 1996 and was contested in the STF by Contag (National Confederation of Agricultural Workers).

The entity defended the invalidation of the decree because it would have made Brazil leave the international treaty without the approval of the National Congress.

In Contag’s understanding, as parliamentarians participate in the inclusion of norms provided for in international agreements in Brazilian legislation, they should also manifest themselves in the event of a decision to fail to comply with them.

Even without the official result, the ministers’ votes show that the defended position is that of the need for the Legislative to manifest, but in the next cases after the publication of the voting result.

Ministers such as the president of the court, Rosa Weber, and former ministers Joaquim Barbosa and Ricardo Levandowski, considered that FHC’s decree would need to have passed through Congress to be valid and, by not doing so, the publication is unconstitutional.

Ministers Kassio Nunes, André Mendonça and Gilmar Mendes followed Teori Zavascki’s understanding, which was complemented in a later vote by Dias Toffoli. For them, Contag’s request should not prosper.

“In these terms, in the case of a secular practice, I understand that the acts of unilateral denunciation by the President of the Republic enjoyed apparent legitimacy, which is why it is necessary to preserve the stability and legal security of the consolidated relations until the establishment of this understanding by this Court,” said Mendes in his vote.

In his vote, Kassio Nunes Marques mentioned that other countries also do not follow the ILO convention targeted by FHC’s decree.

“In addition to all the reasons given by Your Excellencies, it is important to highlight that, although the zeal of article 158, ILO, is commendable, its effects can be adverse and harmful to society. This probably explains the reason for the denunciation made by decree by President Fernando Henrique Cardoso at the time, jealous of the strengthening of the number of jobs,” he said.

DISMISSAL WITH JUST CAUSE OR WITHOUT JUST CAUSE

Dismissals for just cause are provided for in the CLT (Consolidation of Labor Laws) in the event of serious misconduct committed by the employee.

For the worker, it also results in the suspension of rights – he loses the right to a 40% fine on the FGTS (Service Time Guarantee Fund), vacation balance and 13th proportional or prior notice. The employee also does not access unemployment insurance.

Dismissal without just cause is the common one, in which the company breaks the contract and pays all severance pay, such as the Guarantee Fund fine and prior notice.

WHAT ILO CONVENTION 158 SAYS

The text of Convention 158 was approved at the International Labor Conference held in Geneva (Switzerland) in 1982. It deals with “termination of the employment relationship by initiative of the employer” and, according to a survey by the CNI (National Confederation of Industry) in 2019, has been adopted by 35 countries.

The central point of the rule provided for in the convention deals with the justification for dismissal. In behavioral matters, the employee would need to gain time to defend himself and even change his behavior with regard to productivity and attendance, for example.

On the economic front, the justification would be a little simpler, since it would be enough to demonstrate the financial unfeasibility of keeping that employee.