TST rules out presumption of discriminatory dismissal in termination following a flu medical certificate
The TST's 3rd Panel upheld a ruling denying a housekeeper's claim of discriminatory dismissal after a leave of absence for influenza, reaffirming that the presumption under Precedent 443 is reserved for serious, stigmatizing illnesses.
On the docket: the TST's 3rd Panel ruled on the Interlocutory Appeal in Appeal for Review AIRR-1001970-22.2024.5.02.0058, reported by Justice Maurício Godinho Delgado, involving a housekeeper dismissed after a period of leave for the flu. The employee alleged discriminatory dismissal, seeking the shift in the burden of proof set out in TST Precedent 443, which presumes discriminatory the dismissal of an employee with a serious illness that carries social stigma or prejudice. The Panel upheld the lower courts' findings: common, short-duration illnesses such as flu and colds do not fall under that presumption, and the burden of proving discrimination remains with the employee.
The ruling reinforces a boundary that is not always clear in day-to-day HR practice: protection against discriminatory dismissal for illness is not automatic for every medical leave. The TST reserves the presumption under Precedent 443 and Theme 254 (decided under general repercussion) for serious illnesses that carry social stigma, such as cancer, HIV, or severe psychiatric disorders. A medical certificate for a few days for a common illness, on its own, does not shift to the company the burden of proving that the dismissal was not discriminatory.
This does not mean a free pass to carelessly dismiss any employee who has recently taken leave. The TST's analysis is always case-specific: what counts against the company is a suspicious proximity between the leave and the dismissal, combined with indications of discriminatory motive, not merely the fact that a medical certificate existed. Documenting the actual reason for the termination remains the best defense, serious illness or not.
We help companies map, before each termination, whether the employee has had recent medical leave and what type of diagnosis was involved, to clearly separate cases that call for extra caution from those that do not change the risk analysis. Check out Nexus's free diagnostics.
Can your company tell today, when it comes to a termination, the difference between a recent leave that calls for extra caution and one that changes nothing in the risk analysis?