With change in regulations, STF may prohibit dismissal without just cause

The new internal rules approved by the Federal Supreme Court which, among other measures, changes the maximum period for returning requests for review of cases to 90 days – suspension of a judgment carried out by ministers to better analyze a case – should cause an almost immediate change in labor legislation.

According to professor and lawyer Gabriel Henrique Santoro (in the photo), specialist in labor law at Juveniz Jr Rolim Ferraz Advogados, the validity of the new deadline will once again put the vote on the Direct Action of Unconstitutionality on the agenda. (ADI) 1.625.

Proposed by the National Confederation of Agricultural Workers (Contag) and the Central Única dos Trabalhadores (CUT), the Action questions the Decree No. 2.100, of December 20, 1996, made by then president Fernando Henrique Cardoso, who unilaterally denounced (revoked) Convention 158 of the International Labor Organization (ILO), which had been approved and promulgated, respectively, by Legislative Decree nº 68/1992 and Decree No. 1.855 / 1996.

"Basically, ILO Convention 158 guarantees that employees can only be dismissed for just cause, whether the most conventional – when the employee commits serious misconduct – or economic, by proving that the company needs to cut costs or that needs restructuring. In practice, layoffs will only be considered valid if they are duly justified", explains the lawyer.

Between votes from ministers and several requests for review, the last being made by Gilmar Mendes in October this year, the case has been pending in the Court for 25 years and already has a majority of votes for the unconstitutionality of Decree No. 2.100/96. In other words, there are enough votes to validate ILO Convention 158 in the Brazilian legal system.

Santoro believes that the new changes to the STF's internal regulations will mean that ADI 1.625 will necessarily be put to a vote in the first half of 2023.

"Today, despite the STF's internal regulations providing for a 30-day deadline for requests for review, there is no punishment or procedural consequence in case of non-compliance with this deadline, which means that many cases are not even expected to return to the agenda. This will change from next year and, with the continuation of this vote, there are already enough votes to consider the standard proposed by the ILO applicable to Brazil. Even if Minister Gilmar Mendes returns the process with a vote against, it will be approved", he guarantees.

In this scenario, from the year 2023 onwards, employers would have much more difficulty dismissing an employee, a situation that could lead to a rigidity in labor relations and scare away new investments in Brazil.

According to Santoro, a possible legal solution is for the Executive Branch to negotiate with the Legislature so that Decree No. 2.100/96, which unilaterally revoked Convention No. 158, is ratified by Parliament: “In this case – Decree No. 2.100/ 96 be ratified by the Legislature – the legal imbroglio would be resolved, and the possibility of the employer dismissing employees without just cause would remain in force in the country”.

The lawyer also recalls that there is always the possibility of the Federal Supreme Court, verifying the economic and social impact that the decision may cause, modulating the effects of the decision, defining, for example, that the understanding established by the Court in cases of denunciation of international treaties only applies to future cases. “The modulation of effects is a route that can be followed by the STF if the political scenario is not favorable to an agreement between the Executive and Legislative branches”, points out Santoro.

How is the voting for ADI 1.625

So far, the following ministers have voted:

• Joaquim Barbosa, Rosa Weber, Ricardo Lewandowski - valid;

• Nelson Jobim, Teori Zavascki, Dias Toffoli - unfounded;

• Maurício Correa, Carlos Britto - partially upheld (determining "that the denunciation of ILO Convention 158 is conditional on the referendum of the National Congress, from which it becomes effective")

See the content of the latest trial minutes of ADI 1625

"Following the opinion of Minister Dias Toffoli, who deemed the request formulated in this direct action unfounded, maintaining the validity of Decree No. 2.100, of December 20, 1996, I propose the following judgment thesis: “the complaint by the President of Republic of international treaties approved by the National Congress, in order for them to produce effects in the internal legal system, does not preclude their approval by Congress”, an understanding that must be applied from the publication of the minutes of the trial, maintaining the effectiveness of the complaints made until this time frame, finally formulating an appeal to the legislator to develop discipline regarding the denunciation of international treaties, which provides for the approval of the National Congress as a condition for the production of effects in the internal legal order, as it is a democratic imperative and a requirement of the principle of legality, Minister Gilmar Mendes requested a view of the case.

Minister Ricardo Lewandowski anticipated his vote and followed the vote of Minister Rosa Weber (President). Ministers Alexandre de Moraes, Edson Fachin, Roberto Barroso, Luiz Fux and Cármen Lúcia do not vote as they succeed, respectively, Ministers Teori Zavascki, Joaquim Barbosa, Ayres Britto, Maurício Corrêa (Rapporteur) and Nelson Jobim, who have already voted in seats. previous ones. Plenary, Virtual Session from 21.10.2022 to 28.10.2022."