The Bahia Court upheld the dismissal for just cause of a man caught in the company’s “breathalyzer test”. The worker contested the penalty, but the Court considered the seriousness of the offense.
The company, in the transport sector, applied for alcohol, according to internal regulations. The drunken episode occurred in April this year, and the employee caught showed levels of 0.169mg/L and 0.129mg/L.
For comparison, Brazilian legislation establishes that an alcohol content in expelled air equal to or greater than 0.34 milligrams per liter (mg/L) is considered a traffic crime in Brazil. A level above 0.05 mg/L is classified as a very serious administrative infraction, resulting in fines and suspension of the CNH (National Driving License).
What the employee said
The employee supported several arguments when contesting his dismissal for just cause. Among them, he highlighted that the conduct did not characterize negligence with company standards.
The defense argued alcohol consumption was a sporadic conducte what drank alcohol the day before to the testthis being a day designated for rest.
Lawyers suggested that the presence of breath alcohol levels for the test represented a unauthorized interference in the employee’s private life.
The employee sought reversal of just causeas well as payment of severance pay compatible with unfair dismissal and compensation for moral damages.
What the company said
In its defense, the company argued that the strict policy aims to protect security of the worker and everyone on site, the absence of visible symptoms of drunkenness being irrelevant. Furthermore, the role of an electrician requires attention.
The court highlighted that, even isolated, the offense was serious enough. The Court maintained the just cause, as the internal regulations expressly provide for dismissal.
The employee also already had a history of previous penaltiessuch as warning and suspension, for unjustified absences.
What the CLT says
A CLT (Consolidation of Labor Laws) is not completely explicit about the situations and limits involving alcohol consumption in workplaces or during work activities.
She governs the application of jyour cause as the maximum penalty imposed on the worker, resulting from the gravity of the facts that make the continuity of the relationship unsustainable.
O Article 482 of the CLT defines the list of conducts considered just cause for the termination of the employment contract at the initiative of the employer. In paragraph “F”, the law deals with habitual or on-duty drunkenness.
Jurists consulted by CNN Brazil claim that the interpretation is not always clear. The concept of “habitual drunkenness” can be considered, from a legal point of view, a pathology or a social vice that requires treatment and medical monitoring before terminating the employment contract for just cause is considered.
