Court sentence C&The by dismissing pregnant learner

Company was also ordered by the Regional Labor Court to pay a fine by litigation in bad faith.
07/07/2018 14h50 - Updated 9/07/2018 16h41
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The 10th Chamber of TRT-15 condemned the network C stores&A Modas the payment of corresponding replacement indemnity to pay the stability of an official period who served as an apprentice and was with child when he was fired. The company was also ordered by the Regional Labor Court to pay a fine by litigation in bad faith, corresponding to 5% the fixed value of the case.

The Court found that the C&The "acted recklessly in the process, simulating a reintegration did not happen to get rid of the imposed penalties ", and that the network would have provided false claim payment of wages. The information was disclosed by the TRT-15.

According to TRT, the "enterprise resource questioned Special Court's decision of Childhood and Adolescence of Campinas (lying), which had determined the reinstatement of the employee ". "The Chamber partially granted the appeal converting reinstatement order the payment of substitute compensation".

According to the file, the plaintiff signed apprenticeship contract with the person sought in 10.3.2014 and definitely away in 9.3.2015, having as a cause of the removal "minor contract termination apprentice".

The Court points out that the author, However, was with child at the time of contract termination, as proved the ultrasound joined the file. She gave birth on 1 August 2015.

The company defended himself claiming that "the relationship between the parties was restricted to learning contract, fixed-term, which ended 03/09/2015 ". The Labor Court, JEIA determined the reintegration of the claimant, and the company, by injunction, He questioned the content of the advance protection granted, but he failed to clear the court order immediate reinstatement in the complainant's employment, which also determined the company "bear the contractual and legal obligations thereafter, in certain way in the contested decision, keeping, consequently, reinstatement order, under penalty of the application of fixed penalty ".

Although the company has stated that it had fulfilled the order reinstatement in employment, "Did not any proof of his claim", said the judgment of the rapporteur, the judge called Alexandre Vieira dos Anjos.

According to TRT, the "judgment pointed out that only a telegram dated receipt printing 19/11/2015 and joined the case "does not have this probative value, as it has ever been delivered to its recipient, as tracking receipt of this telegram joined by a certificate "".

For the collegiate, So, "There was no compliance with the preliminary injunction to date", and therefore "the daily fine set at hearing (no amount of R $ 150) still focusing on the 10th day following that session ". As for the wages owed to the claimant because of the job security, the judgment upheld the court order "for payment of wages due during the job security from arbitrary dismissal of pregnant learner to their effective reintegration into employment".

At Camera, the complainant "although hired as an apprentice is entitled to guarantee employment to five months after childbirth", as jurisprudence, embodied in Section III of Precedent 244 of the Superior Labor Court. The judgment also noted that "the discussion about knowledge of pregnancy by the employer is irrelevant", nor the defendant's argument to the effect that "learning course completion would prevent the characterization of stability and provisional extension of the contract".

"The ending of the learning program, although essential requirement for hiring, not to be confused with cause extinguish the employment contract in cases of job security ", He stressed the collegial decision, who also said that "to the incidence of constitutional rule, whose purpose is to protect the unborn child, just the confirmation of pregnancy objectively and in term of the employment contract ", complemented.

In this sense, "If the apprentice was pregnant during the contractual relationship, that's all it takes to be entitled to temporary stability, restricting the employer's right to dismiss it, except for just cause, otherwise subject to the legal remedies ", concluded the judgment, with the proviso that, considering that the child's birth took place in 1/8/2015, beyond "the manifest lack of interest claimed to maintain the contractual relationship, not up to reintegration, just compensation arising from the guarantee ".

The plaintiff sought an order the company to pay a fine by litigation in bad faith because of noncompliance with the court order and the false claim of payment of wages in the period of stability.

In his defense, the defendant stated that fulfilled the preliminary injunction and proceeded to reintegrate the complainant, and even confirmed the payment of the corresponding wages. For the collegiate, however, "The defendant has not demonstrated to the satisfaction the due performance of such installments".

The payment receipts joined with the feature "are not skillful means" since it does not contain signature and "were produced unilaterally", said judgment. Besides that, the complainant joined current account statement which do not carry any from depositing claimed.

The board concluded, like this, thus meeting the request of the complainant, the conviction of the company to litigation in bad faith, arbitrated in care of 5% the fixed value of the case. (Process 0011244-65.2015.5.15.0095)

Defense
“A C&The states disagree that acted recklessly or in bad faith in the process to get rid of the imposed penalties ".


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