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August 6, 2015

A cook fired while in pregnancy by “Refeições ao Ponto Ltda.”, from Gravataí-RS, had her right recognized by the provisional stability period, even having achieved another job immediately after her dismissal.  According to the 7th Panel of the Superior Labor Court, there is no unjust enrichment or offense to the principles.  In fact, the worker received indemnity from the former employer and had enjoyed maternity leave, subject to her salary in the new employment contract.

The cook got pregnant while under the work experience period. Two months after being fired, she got another job and four months later she presented labor claim against her former employer demanding compensation for provisional stability period.  Even her former employer had offered her reintegration to her work, she turned it down.  The judge denied her claim by understanding that the goal for pregnancy stability is to keep the job.

In ordinary appeal, the cook argued that the fact of having achieved another job, only demonstrated her strong necessity to work even more during pregnancy.  Despite of this, the Regional Labor Court (4th Region) sustained the sentence.

The Minister Douglas Alencar, the relater, pointed out that the Regional Labor Court did not Grant the maximum effectiveness of the Constitutional guarantee for improving the social condition to the worker, violating the Article 10, item II, aline “b”, of the Act of Constitutional `Provisions. “If the employer violates such guarantee and dismiss the pregnant employee, the sanction to be applied is the reintegration or supplemetary compensation.” He emphasized and ordered the payment of compensation in the amount of her last salary value of the dismissal time up to 5 months after the date of birth.

The decision was unanimous and, after being published the employer opposed declaratory judgement which was not examined yet.