The Labor Court of Rio de Janeiro granted a preliminary injunction ordering the Ministry of Labor to ratify ("homologar") the termination of a former employee who was, at the time of termination, protected from an adverse employment action due to his status as temporarily tenured.
The former employee was elected as a member of the employer's Internal Commission for the Prevention of Accidents ("CIPA") and, given this fact, was temporarily tenured, which means that the employer was prevented from dismissing the employee as of the date he decided to run for election and until 1 (one) year after the end of his term.
Although the former employee agreed to be terminated and received a severance payment corresponding to the remuneration that he would have received if he had remained employed until the end of his CIPA term, both the labor union and the Ministry of Labor refused to ratify the termination. According to the union and the Ministry of Labor, the former employee was temporally tenured and, consequently, could not be dismissed.
Given this scenario, , both the employer and the former employee represented by Veirano Advogados filed a writ of mandamus before the Labor Court of Rio de Janeiro, arguing that the refusal by the Ministry of Labor was illegal and damaged the employee, as he could not file for the unemployment allowance ("seguro-desemprego") or withdraw his Guaranteed Severance Fund ("FGTS").
The labor judge accepted the arguments presented by the employer & employee and ruled that the Ministry of Labor's refusal to ratify the termination was illegal, as it went against the protective principles which are inherent in Brazil's labor laws. As a result, the judge ordered the Ministry of Labor to proceed with the ratification of the former employee's termination.
The filing of a writ of mandamus in this type of case is an effective measure to avoid lawsuits by former employees against their employers over payment of an indemnification in lieu of the unemployment allowance, and claiming for moral damages as a result of the delay to be able to withdrawal the FGTS, among others.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.