"Presumably accomplished through coercion renouncing provisional stability - and therefore null and void - when stripped of any legal or economic interests of the worker and successful farewell without cause." This was the understanding of the 10th Chamber of the Regional Labor Court of the 4th Region (RS) to declare null and void the waiver of stability and, consequently, also the dismissal without cause of an employee member of the Commission for the Prevention of Accidents (CIPA) of Cooperative wheat cropping Erechim (Cotrel). Members of CIPA can not be dismissed within one year after the expiration of his term of
Cipeiro. The decision of the judge sentencing reform Luis Antonio Mecca, the 2nd Labor Court of Erechim.
According to the records, the employee resigned stability on 29 October 2009 and was unfairly dismissed on November 3 of that year, without assistance from the union or the Ministry of Labor and without the existence of legal advantage economic or which could justify the waiver. In this context, the justices of TRT4 assumed that the employee was coerced into relinquishing their right, as is claimed by filing the labor action. The judges also condemned the cooperative to pay wages for the period of stability not enjoyed as the request parameters in the initial action.
At first instance the judge Erechim dismissed the petition, arguing that no evidence was produced to prove the alleged coercion, the decision that generated feature TRT4.
In considering the case, the rapporteur of the judgment in 10th Class, judge summoned Fernando Luiz de Moura Cassal quoted passage from the judgment of the 4th Panel of TRT4, signed by Judge Milton Varella Dutra in 2003. In the ruling, the judge stressed that the general rule in Brazilian Labor Law is the non-waiver labor rights, protected by law in the face of inequality between employees and employers.
This rule, however, according to the judge, is not absolute and, in the case of employment guarantees can be relaxed if it is proven legal or economic interests of the worker through negotiation assisted by a labor union or by other agencies. Other exceptions to the rule would be a serious lack employer or a decision by the worker in his resignation.
The present case, as the rapporteur Cassal does not fit into any of the options listed above. According to the magistrate, "the short lapse of time between the formal renunciation of stability (on 29.10.2009) and the dismissal (on 03.11.2009), added to the fact that you can not see absolutely no interest in the employee's resignation stability, induces presumption of existence of duress as to the content of the appellant declared. " The judge summoned also stressed that the act was not assisted by union or legislature. "The coercion in this context is clear and independent evidence," he concluded.
Judgment of the process 0000581-19.2010.5.04.0522 (RO)
Source: Juliana Machado - Secom/TRT4