Paloma da Silva Aguiar
Lawyer at Marcos Martins Advogados
The failure to adopt measures capable of guaranteeing workers a safe working environment that preserves their mental and physical health is considered by the Superior Labor Court to be serious misconduct, authorizing the indirect termination of the employment contract between the worker and her employer.
A weaving machine operator was absent from her job for more than two (2) months, having received accident sick pay due to tendonitis acquired at work. Upon her return, she asked her employer for a change of job, in accordance with medical advice, which the company promptly complied with.
However, even with the change of job, the worker remained in pain and her employer did not take any additional measures, thus prompting the filing of a labor lawsuit with a request for indirect termination.
The 01st Labor Court of Itajaí/SC dismissed the worker’s claim for indirect termination of her employment contract, even though it found that the company had failed to take the necessary precautions to focus on the health and safety of its workers.
This decision, although upheld by the lower court, was reversed by the Superior Labor Court, which recognized the right to indirect termination, given the employer’s failure to adopt measures to ensure a safe working environment, and the presence of serious misconduct.
In this way, the employer needs to adopt effective measures, which can be adjusted by drawing up internal policies and protocols to avoid future problems, either internally or through the courts.
