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According to the Court, the right to stability cannot be negotiated.

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Monday, September 2, 2024

 

Updated at 09:24

 

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The 5th panel of the TST rejected an appeal filed by a bank against a decision that ordered it to pay compensation for the period of stability of an employee dismissed during pregnancy. For the panel, the clause of the collective agreement that required prior notification of the pregnancy is invalid, as it is a right that cannot be negotiated.

 

The bank employee stated in her labor complaint that she was informed of her dismissal in June 2018, with notice period paid until August. In September, an ultrasound confirmed that she was eight weeks pregnant. The conception would have occurred during the notice period, which, according to her, would guarantee her job security until five months after giving birth.

 

The bank, in its defense, claimed that it was unaware of the pregnancy until it was notified of the labor action. The bank also cited a clause in the collective bargaining agreement that required written communication of the pregnancy status during the compensated notice period to ensure job stability.

 

The 13th Labor Court of São Paulo concluded that, although the bank employee had not reported the pregnancy, the collective agreement could not restrict a right that does not depend on the employer's good faith. Since reinstatement to employment was no longer possible, since the stability period had expired, the ruling ordered the payment of compensatory damages. This decision was upheld by the TRT of the 2nd region.

 

 

 

Collective norm requiring communication of pregnancy is invalid. (Image: Freepik)

Child protection

 

The rapporteur of the appeal, Justice Medeiros, highlighted that the STF validated collective agreements and conventions that limit or remove labor rights, but excluded from this possibility the rights that are absolutely unavailable. The stability of the pregnant woman, also aimed at protecting the child, is one of these rights. The justice stated that the collective norm dealt with a third party's right (the baby), and neither the parents nor the union have the legitimacy to dispose of these interests. He also recalled that the STF, in Theme 497 of the general repercussion, established that the stability of the pregnant woman requires only that the pregnancy be prior to the dismissal.

 

The decision of the 5th panel was unanimous.

 

Process: RRAg-1001586-10.2018.5.02.0013

See the judgment .

 

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1st panel of the TST - Collective norm cannot establish deadline for reporting pregnancy

The employer's lack of knowledge of the pregnancy does not preclude the right to payment of compensation resulting from job security. Under this understanding, set out in Summary 244, the 1st panel of the TST accepted an appeal from a worker and dismissed a collective rule that made the right to job security conditional on confirmation of pregnancy within a specific period.

From the Editors

 

Monday, November 16, 2009

 

 

1st panel of the TST - Collective norm cannot establish deadline for reporting pregnancy

 

The employer's lack of knowledge of the pregnancy does not preclude the right to payment of compensation resulting from job security. Under this understanding, set out in Summary 244, the 1st panel of the TST accepted an appeal from a worker and dismissed a collective rule that made the right to job security conditional on confirmation of pregnancy within a specific period.

 

Three months after being dismissed from  where she had worked for four years, she presented the company's management with medical exams proving that she was pregnant at the time of her dismissal. She tried to return to work, but when her employer refused, she filed a labor lawsuit.

 

The judge of the /PR court denied the recognition of the right to stability and, consequently, the request for reinstatement and the right to stability, on the grounds that the communication of her pregnancy to the company was made after the deadline established in the collective agreement in force, which was 60 days after the termination of the contract. Dissatisfied, the industrial worker appealed to the Regional Court of the 9th region/PR, which confirmed the understanding of the 1st instance.

 

The worker insisted on her arguments and sought to have the decision overturned at the Superior Labor Court (TST), through an appeal. The rapporteur of the case in the 1st panel, Justice  Oliveira, highlighted in his vote that the TST's understanding, expressed in Summary 244, is that imposing conditions on a pregnant woman in order to exercise the right to provisional stability violates the constitutional rule. Therefore, even if the employer was not aware of the employee's pregnancy when he dismissed her, she is guaranteed provisional stability.

 

In the minister's assessment, this is an objective liability, in which the constituent legislator aimed to ultimately protect the unborn child, whose right to civil personality begins at conception. In the same sense, he added, there is a decision by the STF recognizing that a collective norm that conditions the enjoyment of stability on communication to the employer is invalid.

 

Thus, the 1st panel unanimously accepted the worker's appeal and ordered the company to pay the wages and other rights corresponding to the period of provisional stability of the pregnant woman.

 

 link: https://www.migalhas.com.br/quentes/97270/1--turma-do-tst---norma-coletiva-nao-pode-estabelecer-prazo-para-comunicacao-de-gravidez