The Regional Labor Court of Minas Gerais recently unanimously upheld a verdict of merit in which it recognized the validity of the dismissal for just cause of an employee who made excessive use of a cell phone during work. Based on the evidence, the judge classified the conduct as “negligence”.
As it is known, just cause can be applied in case of very serious disciplinary misconduct, but this is rarely the case with “negligence”. There is, however, another case in which this measure is applicable, that is, when there are less serious but repeated faults, despite the employer’s warnings and the application of minor penalties.
In the case in question, it was verified that the company observed the so-called gradation of applicable penalties, to the extent that, prior to the dismissal for just cause, it applied several warnings, verbal and written to the employee, in addition to disciplinary suspension, not only for the excessive use of cell phones during work, but also for several unjustified delays and absences that can also be considered as negligence.
Because it is a public job, a dismissal procedure was opened in which the worker, when defending himself, limited himself to saying that he had already been dismissed for low productivity before, having been reinstated by a judicial decision, and that in case of another dismissal he would again go to the Labor Court. In other words, at no time, either in his defense of his dismissal procedure or in his personal statement, did the employee refute the employer’s reasons.
Contrary to what one might imagine, this is not an isolated position in the Labor Courts, which have often confirmed dismissals for negligence due to excessive use of cell phones in the workplace. However, since dismissal for just cause is the most serious penalty that can be applied to an employee, the Labor Courts are very careful in this type of analysis. It is essential that the company observes and can prove some of the following aspects, applicable to cases of just cause in general:
- proportionality between the fault and the punishment and penalty gradation: the penalty applied must be proportional and adequate to the infraction committed, respecting the penalty application gradation, according to the seriousness of the conduct and its recurrence;
- immediacy: there cannot be a long period of time between the employer’s knowledge of the fault and the application of a penalty, under penalty of constituting tacit forgiveness;
- Non bis in idem: The employer cannot punish the employee twice for the same misconduct;
- Typicity of the conduct: the conduct must be foreseen in the law as behavior that can be applied for just cause;
We clarify that the above text is not exhaustive and does not represent or substitute a specific recommendation based on an analysis of the concrete case.