About 30 years after the first cases of AIDS reported in Brazil, the TST (Superior Labor Court) issued Pronouncement 443, according to which, in the case of bearer employee waiver of HIV or other serious illness, is the employer the burden of proof of non-discrimination of his act.
Depending on the current understanding, there is a favorable presumption that the employee is discriminatory dismissal the carrier of the HIV virus, which extends analogously to other serious diseases, such as cancer and even addiction, conditions that, in theory (??), give rise to stigma or prejudice.
On the one hand, business activity must fulfill its social function, one of the pillars of said modern state, seeking thereby a balance between their profit and heralded social welfare. * 1
Taking into account the high degree of competitiveness of enterprises, it would be fair to keep an eternal stability of the employees who were HIV virus, even those whose income is presented as poorly? Or terminate an employee under such conditions would be to sentence him to death, since most of them sees at work his only chance to maintain a minimally satisfactory standard of living?
While the presumption of a discriminatory dismissal is favorable to the employee, one has to consider very carefully the factual situation on screen. Without this necessary relativism, the
contamination of fate determine the perpetual linking the employee to the company, regardless of their income and dedication. In addition, performance reviews of those involved far-would dispensable, since the appearance of segregation would certainly be brought up. Another aspect worth mentioning is knowledge - or not - of the disease by the employer.
When, in the early 1980, the virus was discovered and its treatment was extremely difficult, the carrier of the syndrome in later stage had invariably sunken cheeks, insufficient level of body fat and physical deep dejection.
Few are those who do not remember public figures admired by the Brazilian people who succumbed to the disease, such as Agenor Cazuza, Renato Russo, Lauro Corona, Sandra Bréa, among many others. Perhaps, at the time, prior knowledge about the disease, not only by the possible employer as well as society in general, would be more easily attested. However, in recent years, the image of AIDS has changed substantially due to the discovery and improvement of antiretrovirals, drugs that are much more effective than those existing up to the middle of the 1990 years.
Thanks to the new medications, AIDS has become a chronic, controllable disease, which patients lead a life considered normal, especially in the professional scope. Thus, the controversy in the labor legal world, regarding the dismissal of an employee with a serious illness, such as AIDS, is notorious.
In addition to questioning whether there would be a "knowledge" of the disease or not, the real reasons behind the dismissal would be discussed: these reasons are based on technical-objective factors, the company's economic situation and the employee's technical income, or founded would be in the unacceptable intention of the private institution to get rid of what would consider a problem? Once the situation of the former employee as a carrier of the HIV virus has been portrayed, there is only the presumption, not an absolute, of a discriminatory act.
According to the Summary 443 TST Venerable, favorable presumption employee succumbs to be proven that at the time of layoff, the company was unaware of the condition that the assailed or if for any hard data says that insufficient work performance employee - performance is not compromised by the disease - a determinant factor for their dismissal.
The magistrate, in turn, it is assessing whether the dismissal was due to potestative the employer's right to disconnect without just cause, the employee - what happens for many reasons concerning the business logic - or, indeed, this would have been motivated by existence, manifestation or worsening of the disease, ensuring the injured his right to reinstatement to employment, as well as a moral nature of compensation.
In a more simplistic analysis, which is far from pacifying the issue, in the case of two employees in an equivalent level of income and productivity - one HIV positive and the other not - and the imperative need to waive one of them, the company should opt for the second employee.
The carrier employee farewell serious illness being discriminatory, companies should, on the notorious social function they fulfill the duty to take consistent stance with the constitutional principles of human dignity and appreciation of the work, maintaining the employment relationship that, in such cases, should be considered in accordance with the Constitutional Charter which provides for 1988 in their 5º articles, XXIII, and 170, III. On the other hand, requires employees to be satisfactory work performance, because the law protects is the discriminatory exemption, not the paid idleness.
, To mention in this sense, examples of brilliant professionals, who, despite serious illness, continued - and continue - contributing to the enhancement of life and work, as Earvin "Magic" Johnson Jr., who, after announcing have contracted the virus for more than two decades, has won the Olympic champion in Barcelona in 1992, becoming coping symbol and resistance to the virus.
Another great example was Herbert José de Sousa, the "Betinho", sociologist and human rights activist and hunger, figure that even in poor health, he worked for many years, reaching even to found and chair the Association Brazilian Interdisciplinary AIDS.
Stability is not eternal; however, there is no alternative but to carrier employee's dismissal of the virus, the company must heed solid documentary and testimonial evidence to reject the hypothesis of discrimination, stating that the disease at any time, influenced in their decision, failing which sentenced to heavy penalties by the labor courts.
Editor's note: This is the advice ....
Author: MIRNA ALONSO AND RODRIGO MARTINI
Office Lawyers Rodrigues Jr. Lawyers - (email@example.com) and (firstname.lastname@example.org)
Source: Mail Braziliense
Editor's Note Soropositivo Web Site.
The fact that I am republishing a text without any authorization amounts to raising a modest debate that begins with a question:
When the author mentions, and I put in bold, the heralded social welfare. * 1,would be, the author, at odds with the fact that the work is necessary pillar for the support of this I call very necessary social welfare?
If so, open space here to explain its position, to which shall reserve the right to reply without rejoinder.
However, given the advice offered by the authors, on the documentation (...) and witnesses ($$$) of the person's unfitness for the service, I offer, for those who have the courage, the delivery of a letter, in two copies , informing the employer, and the second route must be stamped and signed by a person from the company's HR, informing the serology.
Who has the courage to do this without running the risk of being summarily dismissed even tomorrow, I advise that you do this as soon as possible.
I intend to write an article about us this and, when I do, I will link here, in this article, to the reading of my article.
Those who want to participate, just have some resilience and go down to the bottom of the page and put there your review, which will be happy to publish and comment or article, depending on what is written. In the meantime, read this hereand reading this other, very old, which shows the "Intellectual Quotient" of who dismisses and what our entrepreneurs are capable of, although I do not need to say much to mention what some entrepreneurs are capable of.
In another paragraph:
Few are those who do not remember of public figures admired by the Brazilian people who have succumbed to the disease, as Cazuza Agenor, Renato Russo, Lauro Corona, Sandra Brea, among many others. Perhaps, at the time, prior knowledge about the disease, not only by the prospective employer but also by society in general, would be more easily certificate. However, in recent years, the AIDS picture has changed substantially due to the discovery and improvement of antiretroviral drugs, more effective drugs that existing until the mid 1990.
And yet they still dismiss ...