The STF (Supreme Federal Court) decided on Wednesday (16) that only public company employees who retired before the 2019 Social Security reform can be reinstated to employment after requesting voluntary retirement.
Earlier this year, the court had ruled that it was impossible for state employees to remain at work after voluntarily retiring. Now, the Supreme Court has defined that this rule is only valid for those who had the benefit granted by the General Social Security System from November 2019 onwards.
The subject was judged with general repercussion, which means that the thesis approved in this process must be applied by all instances of Justice in similar actions.
In this judgment, the justices also decided that the competence to analyze this type of action belongs to the common courts, and not to the Labor Court.
The concrete case analyzed was an appeal by the Correios and the Union against the decision of the TRF-1 (Federal Regional Court of the 1st Region) which determined the reintegration of workers who had voluntarily retired from the state-owned company.
The discussion began after Correios employees filed lawsuits against a decision by the company’s presidency to determine the dismissal of retired workers who were still active.
The TRF-1 was in favor of reinstatement and, from 6 to 4, the STF maintained this understanding. The understanding, however, is valid only for this specific situation. Most ministers stated that the decision to dismiss retired people who remained at work under the argument that the General Regime prohibited the accumulation of retirement with the salary of public employment was incorrect because there was no such veto at the time.
Overall, however, there were eight votes to define that remaining in employment after voluntary retirement would not be possible. The case was discussed in March in the virtual plenary and, at the time, there was no majority in relation to the thesis to be fixed, as there were divergences about the timeframe for instituting the rule.
This Wednesday, the ministers met in person and established the following thesis, which should be applied by all judges in Brazil:
“The nature of the act of dismissal of a public employee is constitutional, administrative and not labor, which attracts the competence of the common courts to judge the matter. The granting of retirement to public employees makes it impossible to remain in employment under Article 37 of the Constitution, except for retirements granted by the General Social Security System until the date of entry into force of constitutional amendment 103 of 2009 under the terms of its article six”.