TST: firing an employee the day after they return from a serious-illness leave is presumed discriminatory

The 3rd Panel of Brazil's Superior Labor Court (TST) ruled on AIRR-0010590-20.2018.5.15.0145, involving the no-cause dismissal of an administrative assistant at a highway concessionaire. The employee, diagnosed with bipolar affective disorder, received Social Security disability benefits through February 19, 2018, underwent a return-to-work medical exam on February 20, and was dismissed without cause on February 21, one day after returning.

The legal basis: TST Súmula 443

The panel applied TST Súmula 443, under which the dismissal of an employee with a serious illness that carries stigma or prejudice is presumed discriminatory, making the dismissal invalid. The company knew of the employee's health condition but offered no legitimate justification for the dismissal. For the rapporteur, the close timing between the end of the Social Security benefit, the return-to-work exam, and the dismissal, combined with the absence of any stated reason, was enough to establish the presumption of discrimination, which it was up to the company to rebut and it failed to do.

What this means for managing dismissals

Because more than five years had passed between the dismissal and the ruling, reinstatement was converted into a substitute indemnity: the employee is entitled to double the remuneration corresponding to the leave period, plus moral damages set at R$ 10,000. The ruling reinforces that Súmula 443's protection is not limited to specific illnesses named by law: any serious, incurable, or stigmatizing illness can trigger the presumption, and it falls to the company to show a legitimate, documented reason for the dismissal whenever it occurs in the context of a recent health-related leave.

Does your company formally document the reason for every dismissal that happens shortly after an employee returns from medical leave?