Palópoli & Albrecht at JOTA – Discriminatory waiver – both sides of the coin

Written by: Mayra Palópoli – Member of Palópoli & Albrecht Advogados

The dismissal of employees suffering from serious illness is considered as discriminatory. These employees enjoy employment protection and can not be waived. The lack of regulation of the matter, however, brings uncertainties and incalculable risks to companies. There is no list of serious diseases, nor is there any prediction about the period of stability. Would incurable diseases generate life stabilities?

As a consequence of the lack of legislation in this regard, lawsuits multiply, employees requiring reinstatement due to illness, such as cancer, HIV, heart disease, panic syndrome and even depression. Companies, on the other hand, defend themselves, claiming that the disease is not characterized as “serious”, who were previously unaware of the disease, that there was just cause for dismissal (cost cutting, loss of contract and etc), and lack of discrimination.

It is imperative that the legislature and the judiciary regulate the matter, taking into account the fundamental rights of workers and the dignity of the human person, but also delimiting and clarifying the responsibility of the employer in this context.

The Federal Constitution provides in art. 7, as one of the fundamental rights of urban and rural workers, the “employment relationship protected against arbitrary dismissal or without just cause, under the terms of a complementary law, which will provide compensatory damages, among other rights.”

Summary 443 of the Superior Labor Court thus pacified the matter: “The dismissal of an employee carrying the HIV virus or another serious illness that causes stigma or prejudice is presumed discriminatory. Invalid the act, the employee has the right to reintegration into employment “.

In accordance with the constitutional guarantees prohibiting discriminatory practices and guaranteeing the dignity of the human person, the TST Precedent 443 assumes as arbitrary and discriminatory the dismissal of those with a serious illness, and it is up to the employee to prove the prior knowledge of the employer, of the evil that affects him.

The dismissal of a seriously ill worker constitutes a flagrant offense against the principles governing labor relations and the constitutional principles of the dignity of the human person, the social values of work and non-discrimination. Unmotivated waiver would result in the social exclusion of the worker when he most needs work, salary, and medical covenant.

The protection of the sick employee was the measure taken by the Judiciary with the edition of Precedent 443 of the TST. The extent of the entry associated with the lack of legislative regulation, however, has caused enormous uncertainties in the layoffs of sick employees. Responsibilities that should be shared with the Public Power, through the Security and Social Security, are being evicted in the business sector.

Note that by the writing of Precedent 443 of the TST, the magnitude of the jurisprudential “other serious illness” is such that the examples extracted from lawsuits multiply, including bipolar disorder, heart disease, HIV positive, cancer, among others. There is no list or role to consult. The term “serious illness” is the interpretation of every lawyer, employee, employer and judge.

For employers, the risks involved in waiving a particular employee, today are numerous and almost incalculable. It should be noted that the appropriate dismissal does not exempt the employer from liability, since being able to work does not mean that the employee does not carry a serious illness.

In the event of a lawsuit, the employer must prove that the reasons for the dismissal were disciplinary, technical, economic or financial. As an example, it is worth mentioning a decision of the TST, in which the First Class, Minister Hugo Carlos Scheuermann, explained in his vote that the presumption can be dismissed for evidence to the contrary of the employer that demonstrates that there was another motivation licit for the exemption that not health of the worker, in this case the reduction of his staff (Case: RR-4907-08.2010.5.12.0002).

Without legislation regulating the matter and relying only on jurisprudential interpretation and application of Precedent of the TST, uncertainty plagues businessmen. There is no deadline for stability to end, it is not known what diseases are typified.

Incurable diseases, treatments that allow long survival, quality of life, maintenance of work capacity, few limitations and normal life. This is the current reality of several patients with serious diseases. Especially in these cases, one inquires about stability, how long will it last? Is this a guarantee of lifetime employment? Although fit for work and enjoying good quality of life, there is dependence on medicines and treatments.

It is necessary to regulate at one time the provision contained in art. 7th, I, of the CF. The country can no longer live with insecurity from all sides: the employee, to know his rights and to be protected against arbitrary waiver; and the employer, to waive the worker by paying the indemnification provided for in the current norm and then be surprised with a huge bill to pay.