General Inspectorate of Labor Justice suspends decision that prevented the bank from dismissing employees during the pandemic

In addition, article 477-A of the CLT was highlighted

The General Inspector of Labor Justice, Minister Aloysio Corrêa da Veiga, in the partial correction records, determined the suspension of a decision that made it impossible for a financial institution to proceed with unmotivated dismissals, for the duration of the COVID-19 pandemic, also stipulating the obligation to reinstate employees dismissed in the meantime.

The specific case, in its origin, makes reference to a public civil action, filed by a union in the face of a financial institution, requiring, at the outset, that the bank abstain from making layoffs of workers during the pandemic and reinstating those dismissed. The union argued, in this sense, that the financial institution would have violated a commitment informally disclosed in the press.

In the case of public civil action, the injunction sought by the union was rejected, on the grounds that the requirements for granting the measure were absent. To this end, it was considered that there was no “document signed by the requested Bank committing itself not to dismiss its employees during the pandemic period”. In addition, it was emphasized that Article 477-A of the CLT equals individual, plurious and collective unmotivated layoffs, which do not depend on the union’s authorization, nor on the conclusion of a collective agreement or collective labor agreement.

This decision was the subject of a writ of mandamus, filed by the union, whose preliminary injunction was granted in the decision of a judge of the TRT-15. It was determined, then, that the financial institution “abstain from carrying out unmotivated layoffs (individual or collective) while the existence of the pandemic is considered”, as well as the reinstatement of “workers unmotivatedly dismissed during the period in question, under penalty of a fine. daily rate of R $ 50,000.00 ”.

In view of this, the financial institution proposed partial correction, supporting, among other arguments, the incompetence of the Collective Bargaining Section to examine the matter (art. 47, RITRT-15); absence of commitment or contract restricting the freedom of employer to terminate the contract; denial of validity to the rule of article 477-A of the CLT; offense to the general plenary reservation clause (art. 97, CF / 1988); limitation, without legal or contractual basis, to freedom of employer’s extinction of the employment contract; and that the decision ignored the legal end of the state of public calamity on 12/31/2020 (art. 1º, Legislative Decree nº 6/2020).

The General Ombudsman of Labor Justice pointed out the imprecision of the decision that granted the union’s injunction, due to the absence of a clear definition of its scope, that is, the territorial scope (identification of agencies or locations) was not limited, nor employees effectively covered by the injunction.

Minister Aloysio Corrêa da Veiga understood that “too much generics can lead to unforeseen effects, and contrary to the text expressed in law”, with “great impact on the bank’s activities, prevented from exercising, in total and in a generic way, the potestative right to dismiss their employees throughout the pandemic and as long as it lasts ”. In this way, it was characterized “an extreme and exceptional situation to attract the cautionary action of the Internal Affairs Department, in order to prevent injuries that are difficult to repair, with a view to ensuring any useful result of the process”.

Finally, the preliminary injunction required in the partial correction was granted, granting suspensive effect to the interlocutory appeal in the writ of mandamus, until the matter is examined by the competent court.

Wilson Sales Belchior