According to article 10, item II, item b, of the Transitional Constitutional Provisions Act, it is forbidden to dismiss a pregnant employee, from the date of confirmation until five months after delivery.
Precedent No. 244 of the Superior Labor Court also addresses the issue, stipulating that guaranteeing employment, in these cases, authorizes reintegration into work within the period of stability and that the employer’s ignorance of pregnancy does not preclude the right to stability. The standard also applies to those who have a fixed-term employment contract.
The problem is that the right to job stability protects the pregnant employee, but does not prevent her from quitting. This made it a little difficult to solve the problem, mainly because the majority jurisprudence of the Regional Labor Court of the 2nd Region (São Paulo) is that the request constitutes a waiver.
In view of these difficulties, it was concluded that the resignation should be considered null, since the pregnancy was unknown.
As defined by Mauricio Godinho Delgado, author of the book Course on labor law, requesting termination is nothing more than a “unilateral declaration of will by the employee empowered to end the employment contract that binds him to the respective employer”. It is unilateral, and, as such, is subject to all requirements in accordance with the civil code, pursuant to art. 8, single paragraph of the CLT.
In this case, the request can be annulled because it compromises the true will of the party, after all she ignored her pregnancy condition, that is, she had a false perception of reality, an error about her own condition, so the disconnection must be reconsidered. of the CLT.
As supported by the law, as soon as he realized his condition as a pregnant woman, he tried to notify the company to request to reconsider the resignation request.
In view of this scenario, the decision of Dr. Raquel Marcos Simões, Judge of the 42nd Labor Court of São Paulo, was to grant the preliminary injunction required by our office that determined that the company proceed with the reintegration of its employee.
The judge considered that it was proven that the pregnancy was confirmed during the notice period, as well as that the employee informed the company about her pregnancy and her intention to remain in the job.
*Maria Julia Lacerda Servo is a partner at Martins Cabeleira e Lacerda Advogados. He is also a specialist in labor law and a member of the Association of Labor Lawyers of São Paulo.
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