The nature of
the act of dismissal of a public employee is constitutional-administrative and not labor, which attracts
the jurisdiction of
the common courts to judge
the issue. Reproduction EPTV Case was about Correios employees Reproduction EPTV This was
the understanding established in this Wednesday's session by
the plenary of
the Federal Supreme Court, in continuation of
the trial initiated in
the Virtual Plenary, maintaining
the decision of
the Federal Regional Court of
the st Region (TRF-) that determined
the Company Brazilian Post and Telegraph Company (ECT)
the reinstatement of employees dismissed after voluntary retirement. The STF also understood that
the granting of retirement to public employees makes it impossible
for them to remain in employment, under
the terms of article , § , which establishes
the severance of
the relationship that generated
the a
forementioned contribution time. But this rule does not apply to pensions granted by
the General Social Security Regime (RGPS). The TRF-, when judging an appeal on a writ of mandamus, upheld a ruling that determined
the reinstatement of members of
the Federation of Post Office Retirees Associations (Faaco) who, having retired spontaneously under
the RGPS, were dismissed by
the state-owned company without paying
the severance payments.
In the decision, the court noted
Greece Phone Number the existence of STF precedents in the sense that voluntary retirement does not terminate the employment relationship. In the appeal presented to the STF, the Union and ECT supported the competence of the Labor Court to judge the case and claimed that reinstatement after retirement would represent a violation of the constitutional rule on public competition. The rapporteur, minister Marco Aurélio, rejected the jurisdiction of the Labor Court, since, until the promulgation of Constitutional Amendment (EC) , it was up to the Federal Court to judge a writ of mandamus filed against an act of a federal authority involving discussion of rights arising from employment relationship. He noted that, at the time the amendment was promulgated, there had already been a ruling on the merits of the case, which justifies the continuation of the case in the Federal Court. "The application of the law over time reveals security and has non-retroactivity as a
general rule", he maintained. At this point, the understanding was unanimously followed.
The minister also highlighted that the prevailing understanding in the STF is that voluntary retirement does not terminate the employment relationship and that there is no impediment to the accumulation of salary and social security benefits. Thus, by automatically dismissing employees due to spontaneous retirement, ECT acted unmotivated, contradicting the thesis established in RE , which attributed to the company "the legal duty to motivate, in a formal act, the dismissal of its employees." Minister Dias Toffoli also voted to dismiss the appeal, but with different reasons regarding the possibility of accumulating due payments. He pointed out that EC by inserting paragraph in article of the Constitution, defined that retirement ends the link to the position, job or public function whose time of contribution enabled the transition to inactivity, including those occurring under the General Social Security Regime. It turns out that article of EC exempts pensions already granted by the RGPS until the date of its entry into force from complying with this rule.
