Termination without cause of the employment contract. Maintenance of the potestative right: validation by the STF
The plenary of the Federal Supreme Court (STF), in the judgment of ADI 1625, finalized on May 26 of this year, validated - by majority vote - the presidential decree that withdrew Brazil from Convention 158 of the International Labor Organization (ILO), which prohibits unjustified dismissals in adhering countries.
The international norm establishes that the dismissal of employees, in countries that adhere to the agreement, can only occur if there is a justified cause related to their capacity or behavior, or based on the operational needs of the company, establishment or service.
This norm had been suspended in Brazil since 1996, due to a complaint presented to the ILO by the then president Fernando Henrique Cardoso, through decree 2,100/96.
The presidential act was issued months after the National Congress approved the country's adherence to the convention.
Shortly after the publication of the decree, in early 1997, the National Confederation of Agricultural Workers (Contag) and the Central Workers Union (CUT) filed a lawsuit with the STF, claiming that, before taking effect, the country's withdrawal from the convention would necessarily have to go through the Legislative Branch.
The majority of the STF Justices agreed that the President of the Republic cannot, henceforth, withdraw Brazil from international treaties by decree, since if adherence to these international norms requires legislative endorsement, so does withdrawal.
However, for the sake of legal security, the STF fixed the understanding that it could not act to annul the act signed by Fernando Henrique Cardoso, which in practice keeps Brazil out of ILO convention 158.
In this sense, in brief synthesis, the employer's right of power was maintained, especially regarding the unjustified rupture (dismissal without cause) of the employment contract.
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