Vandalism in Brasilia may end in dismissal for just cause

The destruction of the Três Poderes buildings in Brasília (DF) on Sunday (8) is widely documented in videos, photos and reports, many of them made and published by the vandals themselves. After the wave of violence, in addition to being arrested and prosecuted, many may also end up being fired for just cause, say lawyers specializing in the area.

In this type of dismissal for serious misconduct, the employee is terminated without the right to a 40% fine on the FGTS (Senior Severance Indemnity Fund), vacation balance and 13th proportional or prior notice. It also does not access unemployment insurance.

For lawyer Jorge Matsumoto, a partner at the Bichara office, dismissal for just cause is “fully appropriate” as it is an offense to public property and order.

“Although this individual’s behavior was not at the company’s establishment, it presupposes a drastic measure to be taken”, he says. “It would be the same for someone who posted Nazi elements or pedophilia on a social network. It is behavior that violates the fiduciary [confiança].”

Lawyer Marta Alves, partner at Galdino & Coelho, Pimenta, Takemi, Ayoub Advogados, recommends caution in adopting this type of dismissal.

According to her, the employer is protected if he opts for dismissal without just cause – the one in which the worker receives the FGTS fine and the balances of 13th and vacation. The common dismissal of an employee who has participated in coup acts cannot, therefore, be characterized as a discriminatory dismissal.

“The employer is not obliged to explain, but, even if there was a need, participation justifies dismissal, when he [patrão] understands that he does not agree with that and that there is no longer any confidence in that person.”

Dismissal without just cause avoids major headaches, says lawyer Rodrigo Giostri, partner at Sfera Law. However, the fact that many companies are being exposed due to the involvement of their employees in coup acts can be used as a reason for dismissal for just cause.

“At least two issues can eventually give just cause for the damage to the company’s reputation, which are the bad procedure and the harmful act to the honor”, he affirms. These two reasons are on the CLT (Consolidation of Labor Laws) list of justifications for termination of contact for just cause.

For Marta Alves, the CLT’s list is exhaustive, that is, it does not allow exceptions or interpretations. “The Labor Court understands that acts performed outside the scope of the company are not affected”, she says.

According to the lawyer’s interpretation, even though the company is being exposed to embarrassment, the employee was not working and did not mention the company.

Even involvement in recognizably criminal activities, such as invasion, depredation and incitement to crime would not, in Marta Alves’ opinion, be grounds for dismissal for serious misconduct, as the CLT provides that this can only be done after a conviction and when the employee can no longer appeal.

Giostri, from Sfera Law, says that companies could have extra guarantees in the adoption of dismissal for just cause if the veto of participation in radical acts is foreseen in a code of conduct. “In that case, it wouldn’t even be necessary, but it’s always an extra security”, he says. “Sunday’s demonstrations went much further. There is invasion, violence and there is not much doubt that they were criminal practices.”

For José Carlos Wahle, labor partner at Veirano Advogados, before deciding on just cause, the employer must assess the proportionality of that employee’s participation in acts of vandalism.

Civil servants can also lose their jobs

Lawyer Marta Alves, from Galdino & Coelho, Pimenta, Takemi, Ayoub, considers the situation of civil servants caught among far-right protesters who left a trail of destruction in Brasília on Sunday to be more serious.

Among the hypotheses for the dismissal of these State employees are the damage to public coffers and the squandering of public assets. “In that case, proven that he participated in these acts, he can be fired after an administrative process.”