The Federal Supreme Court (STF) formed a majority for the validity of a 1996 presidential decree that, in practice, allows employers to dismiss their employees without presenting justification or just cause.
The decisive vote was by Minister Kassio Nunes Marques, included in the Court’s virtual plenary on the night of this Friday, 26. The score was 6 to 5 due to the constitutionality of the decree, edited by then President Fernando Henrique Cardoso. The measure removed the effects in the country of convention 158, of the ILO (International Labor Organization).
The article provides that the employer has to present a justification for dismissing an employee, which could raise discussions in court about the motivation of companies to make dismissals.
The resumption of the trial, last month, when Minister Gilmar Mendes ended the request for review and put the case under discussion, raised debates on whether the Court would prohibit dismissals without just cause.
Congress approved Brazil’s adherence to the convention in 1996, but FHC invalidated its validity in the country a few months later. In 1997, Contag (National Confederation of Agricultural Workers) filed a lawsuit with the STF questioning the constitutionality of the decree, arguing that the president would be extrapolating his prerogatives by annulling adherence to the international convention, the competence of which lies with Congress.
In this Friday’s decision, Nunes Marques opted for the middle path, established by the then Minister of the STF Teori Zavascki, in 2016. He declared that the revocation of international treaties by an isolated act of the president depends on authorization from Congress. However, he proposed that the understanding should only be valid for future cases, not reaching FHC’s decision, nor other revocations dictated by presidential decree.
In addition to Nunes Marques, Gilmar Mendes and André Mendonça adhered to the middle ground thesis. The score giving validity to FHC’s decree on just cause was completed with the votes of Nelson Jobim and Dias Toffoli, who upheld the permission for the President of the Republic to revoke adherence to international treaties.
The rapporteur, retired minister Mauricio Corrêa, in addition to Carlos Ayres Britto, Joaquim Barbosa, Rosa Weber and Ricardo Lewandowski were defeated, but with gradations and different interpretations of the issue.
The different understanding meant that the STF has not yet proclaimed the result, which has no deadline to occur. The proclamation is what will give the closed understanding of the Court on the attributions of the president and the Congress in the abrogation of treaties and the adherence to international conventions, the object under debate in the action.
In his decision, Nunes Marques observed that the ILO convention that motivated the action was not accepted by most of the member countries, such as Germany, England, Japan, United States, Paraguay and Cuba. And that their adherence could pose risks for employers.
“It is important to highlight that, although commendable the zeal of art. 158, ILO, 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, as well as the need for national and international investment, with a view to the evolution and generation of development of the Brazilian society itself. Hence the need to give prospective effects to the judgment”, wrote the magistrate.
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