Bruna Cristine de Souza Bevilacqua
Lawyer at Marcos Martins Advogados
Labor legislation provides for some types of stability for workers, one of which is included in the chapter on Occupational Safety and Medicine, in article 165 of the Consolidation of Labor Laws¹, and is known as CIPA member stability, which is also provided for in article 10, II, “a”, of the ADCT, CF/88².
CIPA, short for Internal Accident Prevention Commission, is a group of elected employees, made up of representatives of the employer and employees, responsible for preventing accidents and illnesses at work, with the duty to look after the health and lives of other workers in the company.
To put it more clearly, the aforementioned article of the Labor Code grants employees who are members of the CIPA a job guarantee for a period of one year, from the registration of their candidacy until one year after the end of their term of office, with the possibility of re-election under the terms of article 164, paragraph 3 of the CLT³.
And in this context, the understanding of the Superior Labor Court, which has already been summed up in statement no. 339, item II, reveals that “the provisional stability of the CIPA member does not constitute a personal advantage, but a guarantee for the activities of the CIPA members, which only has a reason to exist when the company is in business⁴.”
In this scenario, it is clear that Brazilian legislation aims to protect the employee elected as a member of the CIPA, in order to protect him from reprisals or any measure that the employer may take to harm him, and is in fact an instrument that guarantees the autonomy and effectiveness of the CIPA member in carrying out his duties.
Thus, the employee elected as a CIPA member is protected from arbitrary dismissal or dismissal without just cause. However, it is important to note that the worker may lose this stability in the event of serious misconduct, which must be proven.
In fact, the worker’s protection is supported and well-founded; however, it is not the case that the team leader is an untouchable worker, and in the event of serious misconduct, which is punishable by dismissal for just cause, the stability will be removed.
The fact is that the legislation prohibits arbitrary dismissal, protecting the employee who becomes a CIPA member, but it does not exempt them from responsibility and lack of commitment to the company, and the law protects the employer, since it allows dismissal for just cause, under the terms of article 482 of the CLT.
These are the cases in which just cause may be applied: a) an act of improbity; b) incontinence of conduct or misconduct; c) habitual trading on one’s own account or on behalf of others without the employer’s permission, and when it constitutes an act of competition with the company for which the employee works, or is detrimental to the service; d) criminal conviction of the employee, which has been final and unappealable, if the execution of the sentence has not been suspended; e) slackness in the performance of the respective duties; f) habitual drunkenness or drunkenness on the job; g) violation of company secrets; h) acts of indiscipline or insubordination; i) abandonment of job; j) act damaging to honor or good reputation committed on the job against any person, or physical offenses, under the same conditions, except in the case of self-defense or defense of others; k) an act damaging to honor or good reputation or physical offenses committed against the employer or hierarchical superiors, except in the case of self-defense or the defense of others; l) constant practice of games of chance; m) loss of the qualification or requirements established by law for the exercise of the profession, as a result of intentional conduct by the employee.
For business owners’ peace of mind, this is the majority view of the courts, which in several judgments have confirmed the application of dismissal for just cause to employees who enjoyed stability because they were members of CIPA.
In this case, the only consideration is that the dismissal must be fully documented with as much evidence as possible, so that in the event of a labor lawsuit, the employer is not ordered to reinstate the worker.
And it is in this logistics that the Marcos Martins law firm has honed its skills, preparing consistent and robust defense theses in cases where the former employee is dismissed for just cause, with recent case law, embodied in the understandings of the Courts.
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¹BRASIL. Decree-Law No. 5,452, of May 1, 1943. Approves the Consolidation of Labor Laws, Brasília, DF, May 1943.
Art. 165, CLT. The members of the CIPA(s) representing employees may not be arbitrarily dismissed, this being understood as not being based on disciplinary, technical, economic or financial reasons.
²Art. 10, II, “a”, of the ADCT. CF/88. Art. 10: Until the complementary law referred to in art. 7, I, of the Constitution is enacted:
II – arbitrary dismissal or dismissal without just cause is prohibited:
a) the employee elected to the position of director of internal accident prevention committees, from the registration of their candidacy until one year after the end of their mandate.
BRASIL. Decree-Law No. 5,452, of May 1, 1943. Approves the Consolidation of Labor Laws, Brasília, DF, May 1943.
Art. 164, CLT. Each CIPA shall be made up of company and employee representatives, in accordance with the criteria to be adopted in the regulations referred to in the sole paragraph of the previous article.
§ Paragraph 3 – The term of office of elected CIPA members shall be one (1) year, with re-election permitted.
⁴BRASIL, Superior Labor Court. TST – Precedent 339. Available at:<http://www3.tst.jus.br/jurisprudencia/Sumulas_com_indice/Sumulas_Ind_301_350.html#SUM-339>. Accessed on: 12 Nov. 2018.
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