Preventive detention does not justify dismissal for misconduct, rules São Paulo court

A decision by the 6th Labor Court of the Southern Zone of São Paulo annulled the dismissal for just cause of an IT specialist who missed work because he was in preventive detention. The judge converted the termination into an unmotivated dismissal and ordered the company to pay severance and moral damages of nearly R$ 29,000.

The case involved an employee who was arrested and remained in custody. The company fired him 33 days after his first absence, citing abandonment of work. However, the evidence showed that the worker was deprived of liberty from the day before his first missed shift, and he was later acquitted in criminal court with a final ruling.

In his ruling, the magistrate emphasized that imprisonment, when it results from a precautionary measure, constitutes a cause that suspends the employment contract. According to the judge, the absence cannot be characterized as misconduct because it stems from an external factor beyond the worker's control. The decision cited the principle that the employer should not penalize an employee for a situation that is not attributable to their will.

The judge also noted that, since the criminal conviction did not become final, there was no legal basis for the dismissal for just cause. He stated: "Moreover, a final acquittal occurred, and there is no final criminal conviction capable of supporting the motivated dismissal." The ruling further highlighted that applying the harshest penalty in this context violated the worker's personality rights, including honor, image, and dignity.

The company must now pay the statutory severance package, plus the moral damages. The decision is subject to appeal. Labor lawyers should note that this ruling reinforces the distinction between fault-based dismissal and situations where the employee's absence is justified by external circumstances, such as preventive detention, especially when a later acquittal confirms the lack of fault.