Unfair dismissal: what can change after the STF judgment?

Much has been said about the possible need for justification for dismissals made at the initiative and convenience of the employer, in addition to the possibility of terminating dismissals without just cause.

Following a new rule established by the president of the STF, Rosa Weber, interrupted trials and with a request for review must return to the agenda within 90 working days, that is, the Direct Action of Unconstitutionality (ADI) 1625, which reached the Supreme Court in 1997, which questions the decision of former president, Fernando Henrique Cardoso, to withdraw Brazil from ILO convention 158, which establishes the need for justification for the dismissals made, must be judged.

In practice, if the presidential veto of the time is overturned, the convention will come back into force, that is, possibly, unilateral dismissal, without just cause, through the employer, must have a “justified cause”, whether of an economic nature, technique or even performance, for example.

It is important to say that dismissal “without just cause” or unilateral dismissal, regularly provided for in our constitution and in the Consolidation of Labor Laws (CLT), will not cease to exist even if the presidential veto is overturned, but the employer would need to demonstrate the reason for dismissal, which would not necessarily justify a just cause.

Therefore, even if there is possibly the need for a justified reason for unilateral dismissal, this will not change the type of dismissal, nor the rights already provided for employees, such as unemployment insurance, or even a fine. of 40% on the FGTS balance, due to the fact that dismissal for just cause is already regulated by article 482 of the CLT, with a strict list.

However, among so many speculations, there is nothing settled, because even if the repeal of ILO convention 158 is judged unconstitutional, so as not to create legal insecurities, its application will possibly be subject to modulations, which will only come with the STF trial, which should take place in the first half of this year.

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