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Supreme Federal Court judges Theme 497 of the General Repercussion (Provisional Stability Pregnant)

The Supreme Court (STF) dismissed the appeal of a company in the area of services and based that the ignorance of the pregnancy of employee when dismissal does not remove the responsibility of the employer for the payment of compensation for stability. In the judgment of the Extraordinary Appeal (RE) 629053, with general repercussion recognized, the Collegiate followed the vote of Minister Alexandre de Moraes, according to which the relevant is the biological date of existence of the pregnancy and not its communication to the employer.

According to the vote of Minister Alexandre de Moraes, who opened the disagreement regarding the vote of Minister Marco Aurelio (rapporteur), formal or informal communication to the employer is not necessary, since it is an instrumental right for the protection of motherhood and against the dismissal of pregnant women, who have as holders the maid and the child. "What the constitutional text puts as an initial term is pregnancy. It was found that this occurred before the arbitrary dispensation, stability is on the issue," he said.

According to him, the proof may be later, but what matters is whether or not the employee was pregnant before the discharge so that the protection and maximum effectiveness of the right to motherhood is involved. The lack of knowledge on the part of the worker or the absence of communication, the minister stressed, cannot harm the pregnant woman, since the protection of motherhood, as an individual right, is indispensable. She also pointed out that, in the case of the case[1], it is not discussed that there was a pregnancy prior to dismissal, but that it was also unknown to the pregnant woman and that she was notified to the employer after the dismissal.

The rapporteur, Minister Marco Aurelio, for whom stability was valid provided that the employer was aware of the pregnancy at a time prior to the unmotivated discharge.

With this, even if the issue had already been dealt with by Summary 244 of the TST, it is put an end to any discussion that was had about the employer's duty to reinstate or indemnify the employee when unknown the gravidic state at the time of contractual termination.

The understanding, therefore, is established that it is unnecessary the prior knowledge of the employer of the pregnancy state by the employee at the time of the current termination, being sufficient its existence to establish the right to provisional stability respectively.

The general repercussion thesis proposed by Minister Alexandre de Moraes, draftsman of the judgment, and approved by the Plenary was as follows: "The impact of stability provided for in Article 10, item II, point 'b', of the Transitional Constitutional Provisions Act (ADCT), only requires the priority of pregnancy to discharge without just cause."

[1] RE 629053



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