As of recently the Superior Labor Court, by issuing Precedents and Case Law Guidance, has been expanding labor rights not provided by law, often legislating because of the omission of the legislative power.
In fact, the Precedents issued by Superior Courts should only settle conflicts in the interpretation of the Laws. However, these newly created Precedents have for long deviated from their original purpose and generated new rights for workers.
In the case of tenure for pregnancy employees on fixed term employment contracts, the Superior Labor Court revised item III of Precedent 244, which used to prohibit tenure of employment for pregnant workers on fixed terms contracts in order to, contrary to what was stated before, admit tenure in such contracts.
It is worth mentioning that tenure to pregnant employees in Brazil is assured by art. 10, item II, letter "b" of the Temporary Constitutional Provisions Act, which establishes that discretionary dismissal or dismissal without cause of pregnant employees is forbidden, from confirmation of pregnancy up to five months after childbirth.
Therefore, after such change in the Precedent, published in September 2012, the tenure of pregnant employees was extended to fixed term employment contracts for instance, in cases of employment contracts for a three month probatio period.
The Superior Labor Court's Justices justify the reenactment of the new Precedent by stating that art. 10, II, "b", of the Temporary Constitutional Provisions Act/1988 does not address tenure restriction according to the type of employment contract, be it fixed or indefinite duration employment contract.
The point is that this argument violates the legal concept of fixed term contract termination established in art. 443 of the Brazilian Labor Code (CLT). One of the basic premises of such contracts is that employment termination has no good cause but takes effect with the end of the employment agreement.
Once the premise of the new text of item III of Precedent 244 of the Superior Labor Court is admitted, employees who have their probation period employment contract terminated would also be entitled to the notice of termination and to the 40% fine of the employee dismissal fund (FGTS), because the FGTS law that addresses the FGTS fine does not distinguish fixed term from indefinite duration employment contracts. "
Thus, even after item III of Precedent 244 of the Superior Labor Court was revised, several recent decisions of Regional Labor Courts, which are not bound to the Superior Labor Court's Precedents, have been challenging such precedent as they disagree with pregnancy tenure in cases of fixed term employment contract, since discretionary dismissal or dismissal without cause do not apply. Rather, the employment contract is naturally terminated.
Concerning this matter it is worth acknowledging the opinion of the highly respected Justice and Jurist, Sérgio Pinto Martins, who in a recent decision rendered at the Regional Labor Court of the 2nd Region, highlighted that: "In employment contracts for a term, as well as in contracts for a period of probation, there is no discretionary dismissal or dismissal without cause but rather termination of the employment contract." (Appellate Decision No: 20130388062).
Therefore, the current understanding of item III, of Precedent 244 of the Superior Labor Court, is not unanimous at upper Courts and differs from the opinion of jurists, exactly because as seen in this case it expands rights and creates an exception to the Law, deviating, basic concepts which regulate the employment contract, setting court precedents that violate the Labor Legislation.
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