TST recognizes ageism in the dismissal of a retired employee.
One employee stated that she was dismissed without just cause for "operational reasons."
By Conjur - The 2nd Panel of the Superior Labor Court upheld the decision that found age discrimination (ageism) in the dismissal of a tenured employee of the Companhia de Desenvolvimento e Ação Regional (CAR), linked to the state of Bahia, because she was already retired.
According to the panel, the decision of the Regional Labor Court of the 5th Region (BA) followed the jurisprudence of the TST.
In the lawsuit she filed in 2018, the civil servant, who was hired through a public competitive examination on July 22, 1985, and who died during the course of the proceedings, stated that she was dismissed without just cause for "operational reasons" on July 27, 2016.
She requested the dismissal be declared null and void, claiming that the act was arbitrary, abusive, and discriminatory, since the employer had dismissed, without cause, more than ten employees who had retired due to length of service, including without union negotiation.
Furthermore, she reported that CAR was aware that she suffered from serious illnesses, specifically Parkinson's disease and cancer, which was another discriminatory aspect of the termination, because she was thus deprived of the health insurance plan, necessary for her treatment, which was paid for by her employer.
In its defense, the company from Bahia stated that it was not obligated to justify the dismissal, but pointed out that it was not entirely unjustified, citing as reasons the financial crisis and the need to adapt the budget of the state government of Bahia to the Fiscal Responsibility Law (Law 9.784/99).
In 2019, the 16th Labor Court of Salvador (BA) dismissed the requests for annulment of the termination and reinstatement of the worker, considering that the dismissal was motivated by financial issues, to reduce CAR's expenses. Upon examining the ordinary appeal of the worker's estate, who had already passed away at the time of the judgment, in 2024, the TRT-5 (Regional Labor Court of the 5th Region) overturned the sentence.
According to the Regional Labor Court (TRT), contrary to the conclusion reached by the lower court, the dismissal was discriminatory. The Regional Court pointed out that the dismissal was based on a generic reason, corresponding to "operational issues." It highlighted that the alleged financial crisis and the fear regarding non-compliance with the limits derived from the Fiscal Responsibility Law were not proven.
The panel emphasized that the employer failed to demonstrate that, prior to dismissing the civil servant who had passed a competitive examination, it had complied with the constitutional requirement that, in cases of necessary cost reductions, cuts should initially be made among those holding appointed positions not subject to competitive examination. It also concluded that the CAR (Commission for the Reduction of Expenses) did not meet the criterion that "the justification must consist of reasonable grounds."
Finally, the Regional Labor Court (TRT) highlighted that the dismissal was, "admittedly," discriminatory, as it was a collective dismissal carried out only in relation to employees who were already retired, which, according to the TRT, constituted ageism.
The Regional Labor Court (TRT) then ordered CAR to pay the employee's remuneration for the period from her dismissal until her death, in addition to compensation for moral damages equivalent to fifteen times the worker's last salary.
Illegal cost reduction
According to the rapporteur of the appeal, Minister Liana Chaib, the validity of the administrative act that dismissed the employee based on the fact that she was already retired is "legally questionable and unlawful," as this "criterion was used to select workers for the reduction of the workforce."
In his view, given the way the events unfolded, "one can see a dismissal as a way to remove an older employee from the workforce who represents a higher cost to the public company, as a method to reduce its expenses."
The rapporteur highlighted that the dignity of the human person, a fundamental principle of the Republic enshrined in the Constitution, was not observed in this case, as the worker's dismissal occurred due to factors based on discriminatory ageist practices.
According to Minister Liana Chaib, the retirement criterion, by its nature, implies that this worker is older than others, having already met the requirements for years of work and contributions (conditions for retirement). Therefore, "his selection as a dismissal criterion for the purpose of restructuring the workforce has a clear discriminatory bias, expressly prohibited by Law 9.029/95".
Based on doctrinal, sociological, philosophical, and legal body of international and constitutional law, the rapporteur emphasized that the jurisprudence of the Superior Labor Court (TST) is that "dismissal based on criteria related to the worker's age, more specifically due to eligibility for retirement, has a discriminatory bias and, therefore, is null and void."
