Paloma da Silva Aguiar
Lawyer at Marcos Martins Advogados
The Regional Court of the 4th Region has ruled that a company that withdraws from hiring a candidate, even after a medical examination has been carried out, does not have the obligation to compensate the worker, when the company’s conduct is not unlawful or willful.
In the present case, the worker filed a Labor Claim requesting payment of compensation for moral and material damages for the cancellation of his employment after he had passed a selection process and taken an entrance exam.
At first instance, the lawsuit was upheld and the company was ordered to pay the compensation claimed. However, the Regional Court overturned the decision, finding that there was no irregularity or illegality in the company’s decision not to hire the candidate who had taken part in the selection process.
This is because hiring a worker is an exercise of the employer’s power of choice, so that failure to hire, in itself, if there is no evidence of any wrongdoing in the company’s conduct, is not subject to compensation, even if it generates an expectation of hiring by the candidate who took the entrance exam.
Labor jurisprudence has taken this line, understanding that mere participation in a selection process and taking the entrance exam does not guarantee that the worker will be hired , nor does it give rise to compensation for moral damage, due to failure to hire, since taking the entrance medical exam does not mean approval in a selection process, just as failure to hire does not mean breach of contract by the company.
