If a pregnant woman is dismissed what can happen?

2023-07-21 12:30:29

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If a pregnant woman is dismissed what can happen? Find out what the labor law says on this matter Employee found out that she is pregnant during a probationary contract and is afraid of being fired for that reason.

Fired during a probationary contract, pregnant woman must receive wages for the period of stability and compensation

The 5th Panel of the Regional Labor Court of the 4th Region (RS) recognized the dismissal of a pregnant woman during the trial period as abusive and discriminatory. The judges determined the payment of compensation for moral damages, set at R$ 10,000, and salaries corresponding to the period of stability. In addition to wages, from the day of farewell to five months after delivery, the thirteenth bonus, vacations with an additional one-third, FGTS and a 40% fine must be paid.

Hired on April 5, 2021, for a probation period of 45 days, the general services assistant was fired without just cause on May 20, the day after the contract extension. The company was aware of the pregnancy and the state of gestational risk, as evidenced by WhatsApp messages attached to the process. There was even a medical removal after the threat of abortion.

Upon being fired, the employee filed a lawsuit to obtain the reintegration and maintenance of the health plan, among other requests. The judge of the Labor Court of Montenegro ordered the company to reinstate the plan, upon payment of monthly fees by the worker. As for stability and reintegration, the magistrate understood that the provisional guarantee did not apply because it was a contract for a fixed period.

Unanimously, when judging the appeal presented by the worker, the judges decided to reform the sentence. The magistrates highlighted that the Federal Constitution assured the guarantee of employment for pregnant employees from the confirmation of pregnancy to five months after childbirth, not imposing prior knowledge on the part of the employee or the employer for the constitution of the right.

Rapporteur for the judgment, Judge Cláudio Antônio Cassou Barbosa stressed that, in addition to being aware of the state of pregnancy, the company was aware of the threat of miscarriage. “I understand that the dignity of the worker is greatly degraded. Equivalent to a machine that can be discarded for having a defect, she was fired. By leaving the pregnant worker starving at this unique moment, the defendant fails to meet the social purpose of the company”, said the judge.

For the magistrate, the case constitutes double immaterial damage, to the pregnant woman and the unborn baby, which justifies the compensation. “It is unquestionable the shock suffered by the worker in her morale resulting from the arbitrary dismissal in the middle of the gestation process. The moral shock suffered is undeniable, already affected by the pregnancy itself and in the face of the economic difficulties inherent in the situation”, concluded the rapporteur.

Judges Angela Rosi Almeida Chapper and Marcos Fagundes Salomão also participated in the trial. The company filed an appeal with the Superior Labor Court (TST).

The pregnant employee is entitled to the provisional stability provided for in art. 10, item II, letter b, of the Temporary Constitutional Provisions Act, even in the case of admission under a fixed-term contract.

Thus, the employee who is pregnant in the experience contract has the same rights as a worker who is hired permanently.

Therefore, the pregnant employee in the probationary contract cannot be dismissed without just cause, as she has provisional stability provided for in the Transitory Constitutional Provisions Act, art. 10, item II, item b, which states so.

“Art. 10 – Until the Complementary Law referred to in article 7º, I and Constitution:

…

II – arbitrary or unjustified dismissal is prohibited:

b) of the pregnant employee, from confirmation of pregnancy to five months after delivery.”

The Contract for a fixed period (Experience), does not exclude the right to provisional stability of pregnant women. The understanding, provided for in Precedent 244 of the Superior Labor Court, establishes that the employee who becomes aware of her pregnancy during the probationary contract is entitled to the tenure provided for in article 10, II, b, of the Transitory Constitutional Provisions Act.

Precedent No. 244 of the TST

PREGNANT. TEMPORARY STABILITY

I – The employer’s lack of knowledge of the pregnancy status does not rule out the right to pay the indemnity resulting from stability (art. 10, II, b of the ADCT).

II – The job guarantee for pregnant women only authorizes reintegration if it takes place during the stability period. Otherwise, the guarantee is restricted to wages and other rights corresponding to the stability period.

III – The pregnant employee is entitled to the provisional stability provided for in art. 10, item II, letter b, of the Temporary Constitutional Provisions Act, even in the event of admission under a fixed-term contract.

Provisional stability goes from the moment the pregnancy is confirmed to 05 months after the birth, regardless of whether the experience contract would end before that period, hence the right to reinstatement.

The lack of knowledge of the pregnancy by the company and the employee at the time of dismissal does not prevent reintegration into work:

PREGNANT PROVISIONAL STABILITY. NO NECESSARY KNOWLEDGE OF PREGNANCY. APPLICATION OF SUMMARY No. 244 OF THE TST – Class Decision in harmony with Precedent No. 244, of the TST, which makes it impossible to know the appeal due to jurisprudential divergence, under the terms of the final part of the item II of art. 894 of CLT. Embargo appeal not known. (Case 1210402420075040403 – Judging Body Subsection I Specialized in Individual Disputes, Publication DJ 12/19/2008. Rapporteur Carlos Alberto Reis de Paul

Sources: R7/ JusBrasil/ TRT4