The 3rd Panel of the Regional Labor Court (TRT) dismissed the appeal filed by a pregnant employee. The worker, who was waived pregnant, refused to return to work, but wanted to receive an indemnification for the entire period corresponding to the gestational stability.

The claimant, fired in January 2011, was notified by the defendant two months after the dismissal to reassume her position. As the claimant refused to do so, alleging hostility in the workplace, the Labor Court in Cruise decided that the worker was entitled to an indemnification related only to the period between the date of her dismissal and the date of the reception of the telegram summoning her to return to work.

Besides insisting on the "impossibility" of her reinstatement to work due to hostilities, the claimant also invoked the protection of the unborn child as a reason to pursue the reversal of the original decision.

However, her thesis was not accepted by the reporting judge José Pitas, for whom, although the gestational stability protects primarily the unborn child and not the mother, the worker could not waive her readmittance to work without satisfactorily show its impracticability.

The reporting judge also noted that the employer was not aware of the pregnancy of the worker when the dismissal since the conception had occurred a few days before. For the reporting judge, this demonstrates the good faith of the defendant since it provided to the worker her return to work.

The construction of the reporting judge was followed by the other members of the 3rd Panel. According to them, the purpose of the item "b" of section II of article 10 of the Transitory Constitutional Disposition Act (ADCT), which prohibits the arbitrary dismissal in cases of pregnancy worker, is the maintenance of the employment bond.

The unmotivated refusal to the readmittance provided by the employer during the stability period characterizes resignation of job security arising from the pregnancy, before the principle of freedom of labor. In this sense, the judges concluded that any indemnification would only be due by reason of impossibility of reinstatement of the employee, which was not actually proven in the case records.

Case No. 0000385-97.2011.5.15.0040

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