The Supreme Court declares a dismissal null and void when a worker demands overtime


The Plenary of the Fourth Chamber of the Supreme Court has applied the guarantee of indemnity and has declared the dismissal of a worker null and void with a fixed-term contract, who was fired the day after he expressed his disagreement with non-payment of excess hours.

The high court affirms that the company alleged as the cause of the disciplinary dismissal a decrease in performance that was not proven and adds that the dismissal, immediately after the claim, made it impossible for the worker to make any legal claim.

The judgment argues that, as a general rule, internal claims within the company do not activate the indemnity guarantee, but if a worker makes an internal claim and is immediately firedwithout the company accrediting the existence of breaches that justify the termination of the contract, the impossibility of formulating the judicial claim prior to the dismissal is “attributable solely to the employer”.

For this reason, the sentence indicates that in this temporal context, it operates as an indication “of the violation of the guarantee of indemnity”, which obliges the employer to prove that the dismissal was unrelated to the violation of the fundamental right included in article 24 of the Constitution. The decision of the sentence has been made known to the parties, and the full text of the resolution will be notified in the coming days.


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