TST sends Banco do Brasil indemnify bank tendered for dispensation after judgment

The Third panel of the Superior Labor Court (TST) rejected the appeal of the Banco do Brasil S.A. against a decision which ordered him to reinstate and pay compensation to an Brasília (DF) banker, dismissed after bringing an action against the bank. He had more than 30 years of service, without any punishment, and the conclusion, in all instances, was that the dispensation characterized retaliation and was discriminatory.

Admitted by public tender in 1981, the banker entered Justice in February 2013 to order overtime. The following month, he was called by the executive manager at the end of the day and surprised by the letter of resignation. 

In the action, he argued that he had never received a penalty or a fall in performance. According to his report, there were several cases in the Distrito Federal of BB employees who filed lawsuits to receive overtime and, in retaliation, were dismissed. In asking for the nullity of the measure, he argued that he was concurred and, to be dismissed, the act would have to be motivated.

In its defense, the Banco do Brasil maintained that the waiver was an act of administrative management and that the dismissal of employee of company of mixed economy society does not require motivation, because the bank would be under the legal regime of private companies.  The first-degree judgment determined the reinstatement and granted compensation for moral damages of R $ 50 thousand. The judgment pointed out that the fact that the dispensation occurred days after the judgment of action revealed an act of persecution, because there was no other basis for the act.

The Regional Labor Court of the 10th Region (DF-TO) maintained the judgment, emphasizing the need for motivation of administrative acts. In addition, he stressed that the lack of motivation concealed discrimination, based on retaliation for the legitimate right of access to justice.

The company attempted to rewrite the case in the TST, but the rapporteur, Minister Mauricio Godinho Delgado, noted that, in 2024, the Supreme Court (STF) approved general repercussion (constitutional relevance filter)’s thesis (Tema 1.022) that public companies and mixed-economy companies have a legal duty to motivate, in formal act, the dismissal of their hired employees. For reasons of legal certainty, the decision would only have effect on the waivers subsequent to the trial (4/3/2024).

The banker was fired before that. But for Godinho Delgado, the case allows us to establish a distinction, since the dispensation occurred in retaliation to the judgment of labor action. “By adopting this practice, the bank goes against the social ends required to exercise its right,” he said. In order to reach a different conclusion from the TRT, it would be necessary to re-examine the facts and evidence of the case file, an infallible procedure in the TST (súmula (consolidated case-law summary) 126).

Process: AIRR-1809-52.2013.5.10.0006

With TST information.