End of Job Stability for Pregnant Employees in Fixed-Term Employment Contracts

Job stability for pregnant employees under fixed-term employment contracts, such as probationary contracts, is a controversial matter in labor law.

Based on Article 10, item II, subitem “b” of the Transitional Constitutional Provisions Act (“ADCT”), it was construed that the provisional stability granted to pregnant employees would apply even in the case of hiring under a fixed-term contract.

This understanding was consolidated through the amendment of item III of Precedent (Súmula) No. 244 of the Superior Labor Court (TST), in verbis:

TST Precedent No. 244

PREGNANT EMPLOYEE. PROVISIONAL STABILITY (wording of item III amended at the Plenary Session of the Court held on 09/14/2012) – Res. 185/2012, Official Labor Justice Gazette (DEJT) published on 09/25, 09/26 and 09/27/2012

I – The employer’s lack of knowledge of the employee’s pregnancy does not affect the right to payment of the compensation arising from the stability (art. 10, II, “b” of the ADCT).

II – The guarantee of employment granted to the pregnant employee only authorizes reinstatement if it occurs during the stability period. Otherwise, the guarantee is restricted to the wages and other rights corresponding to the stability period.

III – The pregnant employee is entitled to the provisional stability provided for in Article 10, item II, subitem “b” of the Transitional Constitutional Provisions Act, even in the event of hiring under a fixed-term contract.

This interpretation, however, was not always the prevailing one and resulted from changes stemming from Case Law Guidelines (Orientações Jurisprudenciais) Nos. 88 and 196 of the TST’s Subsection I Specialized in Individual Disputes (SBDI-1) – Res. 129/2005, Official Gazette (DJ) of 04/20, 04/22 and 04/25/2005.

The previous wording of item III of Precedent No. 244 of the TST, which was amended, was as follows:

Item III – The pregnant employee does not have the right to provisional stability in the case of hiring under a probationary employment contract, since termination of the employment relationship upon expiry of the term does not constitute arbitrary dismissal or dismissal without cause. (former Case Law Guideline No. 196 of SBDI-1 – inserted on 11/08/2000)

Recently, the Superior Labor Court once again changed its position on the matter, settling the issue. In this context, Justice Alexandre Ramos explained that the TST Plenary, in ruling on IAC-5639-31.2013.5.12.0051 (Incident of Assumption of Jurisdiction – IAC), established the legal thesis that the guarantee of provisional stability for pregnant employees is inapplicable to temporary work arrangements governed by Law No. 6,019/1974.

According to him, the ADCT provision refers only to arbitrary dismissal or dismissal without cause, which does not occur when a fixed-term contract ends due to the mere lapse of time. “Fixed-term contracts and stability are incompatible legal institutions, aimed at completely different situations,” he explained. “The former establishes an end date for the contract, while the latter, in turn, seeks to keep the employment contract in force.”

Regarding the conflict between the thesis in item III of TST Precedent No. 244 and the understanding of the TST Plenary, the Justice noted that, according to item III of Precedent No. 244, a pregnant employee is entitled to provisional stability even under fixed-term contracts. However, the Federal Supreme Court (STF), in setting a binding precedent (Theme 497 of general repercussion), held that this stability applies only when pregnancy predates dismissal without cause. “The thesis is clear in electing, as one of the prerequisites of this job guarantee, dismissal without cause, that is, it excludes stability in other forms of termination of the employment contract: resignation, dismissal for cause and termination of a fixed-term contract,” he stated. The decision was unanimous. (GS/CF) Case: RR-101854-03.2018.5.01.0471

According to the headnote (ementa) of RR-101854-03.2018.5.01.0471, with final and unappealable judgment on 05/28/2021:

“1. PROVISIONAL STABILITY. PREGNANT EMPLOYEE. TEMPORARY CONTRACT. TST PRECEDENT NO. 244, III. INAPPLICABILITY. STF GENERAL REPERCUSSION THEME 497. BINDING EFFECT. POLITICAL TRANSCENDENCE RECOGNIZED. APPEAL GRANTED. I. The Plenary of this Court, in ruling on IAC-5639-31.2013.5.12.0051, established a legal thesis to the effect that ‘the guarantee of provisional stability for pregnant employees, provided for in Article 10, II, b, of the Transitional Constitutional Provisions Act, is inapplicable to the temporary work regime governed by Law No. 6,019/74.’ II. The decision of the Federal Supreme Court on Theme 497 is of striking clarity when it elects as prerequisites for the stability of pregnant employees (1) the fact that the biological factor of pregnancy predates termination of the contract and (2) dismissal without cause, thereby excluding stability from other forms of termination of the employment contract. It is evident that the STF opted to protect pregnant employees against dismissal without cause – as an act of the employer’s will to terminate the contract without attributing just cause to the employee – excluding other forms of termination, such as resignation, dismissal for cause, termination of a fixed-term contract, among others. III. The concept of stability, so celebrated in the grounds of the judgment of Theme 497 of general repercussion, concerns the impossibility of terminating the employment contract by an unmotivated act of the employer, without precluding that the contract be terminated for other reasons, in which there is a manifestation of will on the part of the employee, as in the case of resignation (the manifestation of will occurs at the end of the contract) or in fixed-term contracts and temporary employment contracts (the manifestation of will by the employee occurs at the beginning of the contract). Thus, in the event of hiring under a fixed-term contract, there is no right to the provisional job guarantee provided for in Article 10, item II, subitem “b” of the ADCT. Item III of Precedent 244 of the TST is thus superseded by the thesis established in Theme 497 of general repercussion by the Federal Supreme Court, in a judgment handed down in RE 629.053, at the Plenary Session of 10/10/2018. IV. The thesis established by the STF Plenary, under the system of general repercussion, must be applied by the other bodies of the Judiciary until res judicata is stabilized, under penalty of forming an unconstitutional res judicata (a qualified defect of unconstitutionality), whose enforceability may be challenged at the enforcement stage (CPC, art. 525, § 1, III), as per Theme 360 of general repercussion. V. Therefore, by concluding that the guarantee provided for in Article 10, II, ‘b’, of the ADCT also covers temporary workers, the Regional Court decided contrary to the TST’s case law. Political transcendence of the case is demonstrated. VI. Appeal for review granted.”

Therefore, only dismissal without cause under an open-ended (indefinite-term) employment contract may give rise to job stability for pregnant employees, in view of the overruling of item III of TST Precedent 244 by the thesis set forth in Theme 497 of general repercussion by the Federal Supreme Court, in a judgment handed down in RE 629.053, at the Plenary Session of 10/10/2018.

[1] “Art. 10. Until the supplementary law referred to in art. 7, I, of the Constitution is enacted: ...(omitted)... II – arbitrary dismissal or dismissal without cause is prohibited in relation to: ...(omitted)... b) a pregnant employee, from confirmation of the pregnancy until five months after childbirth. (See Supplementary Law No. 146, of 2014)”