Find out when you can request the reversal of a dismissal for just cause

The Superior Labor Court (TST) upheld the reinstatement of a bank employee dismissed for just cause, after finding that there was insufficient evidence to prove misconduct. The decision reopens the debate on the proper application of this penalty, which, due to its severity, requires rigorous proof of the facts alleged by the employer. Learn about the legal grounds for dismissal for just cause and when it is possible to seek a reversal in court.

In the case in question, the bank dismissed the employee based on an internal investigation that suggested the employee's involvement in irregularities in the transfer of funds to banking correspondents. However, the TST found that there was no concrete evidence to prove the alleged misconduct. The lack of material or documentary evidence led to the upholding of the decision that ordered the employee's reinstatement to his position, considering that the just cause had been applied improperly.

For attorney Priscila Ferreira, a master's degree holder in Labor Law, professor, and partner at Ferreira & Garcia Advogados, dismissal for cause must be applied with extreme caution. "It is the most severe penalty an employer can impose on an employee, as it entails the loss of important rights such as advance notice, a 40% FGTS fine, and access to unemployment insurance." The measure is provided for in Article 482 of the Consolidated Labor Laws (CLT) and requires proof of serious misconduct, such as acts of misconduct, negligence, insubordination, drunkenness on the job, among others.

The attorney explains that in the case analyzed by the Superior Labor Court (TST), the bank alleged that the employee had engaged in irregular behavior but was unable to present sufficient evidence. "Without concrete evidence to support the accusation, such a drastic penalty cannot be applied. The burden of proof lies with the employer, and a lack of proof weakens the just cause and may lead to its reversal," he emphasizes.

Ferreira comments that reversal of the just cause can be requested by the employee when they believe there was an error, abuse, or disproportionality in the application of the measure. "This can occur, for example, when the alleged act did not occur, there is no evidence, the penalty is excessive, or the employee was not even previously warned. However, reinstatement to the position is usually only determined in specific cases, such as when the employee has provisional tenure, as was the case in this trial," he points out.

To defend themselves, the employee must gather as much evidence as possible, such as witnesses, internal company records, messages, emails, and even technical expertise, if applicable. "The support of a labor lawyer is essential to organize the legal strategy and counter the employer's allegations. While the employer has a duty to prove, the employee needs to be prepared to defend themselves clearly and objectively," advises the professor.

She also warns of the main mistakes companies make when applying just cause: lack of solid evidence, application without prior warning, excessive delay between absence and dismissal (constituting tacit forgiveness), and lack of proportionality. "The Labor Court is meticulous in these cases. Just cause cannot be used lightly. When poorly founded, it damages the employee's image and can generate serious legal consequences for the employer," she concludes.

Source: Opinião RH