Paloma da Silva Aguiar
Lawyer at Marcos Martins Advogados
A company fined for not filling its workforce with people with disabilities manages to overturn the infraction and fine imposed, as the Substitute Labor Judge of the 78th Labor Court of São Paulo/SP found a lack of workers interested in the vacancies opened up by the employer.
Article 93 of Law No. 8,213/1991 stipulates that a company with 100 or more employees must fill 2% to 5% of its positions with qualified disabled people or beneficiaries rehabilitated by the National Social Security Institute (INSS). This percentage, in turn, is adjusted according to the number of employees in each company.
In view of the company’s proven failure to meet its quota, the inspection bodies fined it the equivalent amount, disregarding any justification for its inability to meet the quota.
Unsatisfied, the company filed a lawsuit seeking to have the fine annulled, showing that it had published several notices in newspapers and magazines about vacancies to fill the PCD quota, as well as contacting possible interested workers for interviews, as they had liked posts about these vacancies on social networks.
Thus, given that the company had effectively proven that it had tried to fill the legal quota, but had been unsuccessful in hiring employees, the 78th Labor Court of São Paulo/SP dismissed the penalty imposed by the inspection body, annulling the infraction notice issued on the grounds that “the case concerns a complex act, whose implementation does not depend exclusively on the will of the obliged party, since it is an obligation relating to hiring, which, as we know, requires the manifestation of other people, in other words, the acceptance of a job offer by workers with disabilities for the vacancies in the legally established quota”.
In this way, it is of the utmost importance to document the entire process involving filling the legal quotas. Likewise, as shown above, it is not enough to simply claim that it is impossible to comply with the legislation; the company must effectively prove to the courts that it has carried out all the necessary acts to meet the quota, but without success, in an attempt to avoid any penalties imposed by the inspection bodies.
