A proteção constitucional contra a despedida arbitrária ou sem justa causa - elementos e fundamentos para efetivação

Abstract

The lack of effectiveness of the protection of the employment relationship against arbitrary dismissal or without just cause is a situation that deserves further study. This is the first of many fundamental social rights of the Brazilian worker, not yet implemented on the grounds that it is essential to issue complementary legislation. Stability in employment, and not only the payment of indemnities, is analyzed in this dissertation, which will seek to demonstrate that the constitutional context in force has as its central value the dignity of the human person, which is directly linked to the protection of the Employment, which in the capitalist regime constitutes the main form of exploitation of human labor and, therefore, the worker's main means of subsistence. Therefore, in a first chapter the current situation of ineffectiveness of this right will be studied, with an indication of the constitutional elements that justify the need to make it effective, such as the principle of the dignity of the human person and the social function of property and business. Next, another approach to be analyzed will be the stabilities already existing in the national legal system, which, although based on specific situations, also have in the dignity of the human person a foundation of support, exactly as it happens with regard to the provisions of item I of the Art. 7 of the Constitution. Thus, the issue to be demonstrated is the presence of a common element between the stabilities already in force and the need to protect employment under study, which justifies the possibility that this protection may also be achieved through employment. Other issues relevant to this aim will be studied, such as the possibility of internalization of Convention 158 of the International Labor Organization (ILO), in which the requirement of motivation for dispensations, in addition to the discussion on collective dispensations, is provided for, which Brazilian jurisprudence Considered valid only when preceded by prior collective bargaining. Finally, the study will focus on the possibility of creating stability, including time of service, through collective bargaining agreements and collective bargaining agreements. With this, it is hoped to contribute to the discussions about the way in which this important fundamental right of the Brazilian worker should be effective.