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TST Decision on Employee on Sick Leave Reveals How Parallel Paid Activities Can Result in Immediate Dismissal for Breach of Trust, Even in the Face of Conflicting Versions Presented During Administrative and Judicial Processes.
The Labor Court confirmed the dismissal for just cause of a socio-educational support agent from the Fundação Casa in Ribeirão Preto (SP), who was seen working as a security guard in a supermarket during the time he was away from work and receiving sick leave benefits from INSS.
The decision, made on January 15, 2025, by the Seventh Chamber of the Superior Labor Court (TST), stated that the conduct broke the trust essential for the continuity of the employment relationship and removed the possibility of reverting the dismissal.
TST Maintains Just Cause and Points to Breach of Trust
The agent had been working at Fundação Casa since 2002 and was dismissed for just cause in February 2016, following the conclusion of a disciplinary administrative process.
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According to the institution, between December 2014 and January 2015, the period in which he was officially on sick leave and supported by sick pay, he was working as a security guard in a supermarket in the city.
For the Seventh Chamber of TST, the fact that the employee was receiving social security benefits on the premise of incapacity for work while performing paid activity in another establishment is incompatible with the trust required by the contract and constitutes a serious misconduct.
Therefore, the court deemed the dismissal promoted by Fundação Casa to be legitimate.
Internal Complaint Led to Disciplinary Investigation
The case reached the internal affairs office of Fundação Casa following a complaint made by a colleague of the agent.
Unsettled by the increased workload during the absence of his teammate, the employee informed management that the colleague was working as a security guard in a supermarket during the same period that he was documented as incapable of performing his duties at the socio-educational center.
Based on this report, the internal affairs office initiated a procedure and began gathering evidence regarding the employee’s conduct.
The administrative investigation concluded that he was regularly performing security activities at the local business, leading to the application of just cause for misconduct.
Audiovisual Evidence Showed Activity as a Security Guard
According to information released by the TST, the dossier produced in the administrative process and later analyzed by the Judiciary included videos, photographs, and testimonies showing the agent in typical security guard posture.
The images depicted him positioned behind the cash registers, observing the movement of customers and employees, and monitoring the routine of the establishment, in a context considered incompatible with that of a mere consumer.
Such evidence was deemed sufficient by both Fundação Casa and the Regional Labor Court of the 15th Region (TRT-15) to characterize the habitual provision of services to the supermarket, precisely during the interval when the worker was on leave and receiving benefits for incapacity.
The conduct was classified as an act of misconduct and a breach of loyalty to the employer and the social security system.
Worker’s Version Was Accepted at First Instance
After dismissal, the agent filed a labor claim seeking the reversal of the just cause and reinstatement to employment.
In the action, he claimed that the complaint did not correspond to reality and asserted that, due to a toe fracture, he would not have the physical conditions to stand for long periods, as required in the security guard position.
He also claimed that he had only been to the supermarket once, as a customer, during which he was filmed and photographed.
To support this version, he submitted a receipt issued by the establishment itself, indicating that on that date, he was only consuming and not providing services.
At first instance, the labor court partially accepted the employee’s argument.
The ruling assessed that there was insufficient conclusive evidence that he was actually working for the supermarket and determined the reversal of the just cause, resulting in his reinstatement at Fundação Casa.
In the decision, the judge gave considerable weight to the receipt presented by the worker, admitting the possibility that he was at the location solely as a consumer at the time the images were recorded.
TRT-15 Restores Dismissal for Just Cause
The scenario changed when the case was re-examined by the TRT of the 15th Region, based in Campinas.
Upon analyzing the evidence, the court found that the video did not show the agent in line or waiting for purchases to be released, but standing behind the cash registers, observing the environment in a manner typical of a security guard.
Based on this interpretation of the footage, TRT-15 concluded that he had provided services to the supermarket during his sick leave.
For the regional court, this conduct undermined the trust necessary for the maintenance of the employment bond and rendered the continuation of the labor relationship unfeasible, which is why just cause was restored.
TST Applies Summary 126 and Upholds Regional Decision
Dissatisfied with the outcome at TRT-15, the worker appealed to the TST through an appeal for review.
The rapporteur, Minister Alexandre Agra Belmonte, highlighted that the regional court had already recognized, based on the evidence in the records, that the agent had actually carried out security activities during the time he was on sick leave.
Under these circumstances, the minister indicated that the discussion on the matter would involve re-examination of facts and evidence, a procedure prohibited by Summary 126 of the TST, which prevents the higher court from reassessing the probative set established by the ordinary instances.
Consequently, the court unanimously declined the worker’s appeal and upheld the decision of TRT-15, which confirmed the just cause applied by Fundação Casa.
Fraud in Sick Leave and Article 482 of the CLT
The just cause is the most severe penalty provided for in Brazilian labor legislation and is regulated by Article 482 of the Consolidation of Labor Laws (CLT), which lists hypotheses such as acts of misconduct, misconduct, inappropriate behavior, negligence, violation of company secrets, serious insubordination, and other situations of serious misconduct.
In the analyzed case, the agent’s behavior was classified as an act of misconduct and violation of contractual good faith, due to performing paid activities elsewhere while declaring incapacity for regular work and receiving social security benefits.
For the Seventh Chamber, this type of conduct represents fraud in the medical leave and justifies immediate dismissal, without the need for intermediate measures.
Impact of the Decision on Employees on Leave
The decision has been cited by labor lawyers and specialized media as a reference for how paid work during medical leave or sick pay can lead to job loss for just cause, especially when there is direct evidence of working in another position.
Comments from experts emphasize that, for the Labor Court, the central point is not just the existence of another income, but the contradiction between the declared incapacity for the primary position and the performance of functions in conditions apparently inconsistent with the leave.
In other cases, courts have already admitted that certain moderate, recreational, or medically compatible activities do not, by themselves, invalidate the need for leave from work.
However, the approach taken in the case of the Fundação Casa agent highlights that engaging in paid activity in another job during the same period when the employee is formally on sick leave tends to be scrutinized rigorously, especially when there are audiovisual and testimonial elements indicating habitual service provision.
In light of this precedent and the TST’s emphasis on breach of trust and contractual good faith, how can employees on medical leave evaluate, with certainty, which types of activities — especially if paid — may jeopardize the employment bond and be interpreted by judges as fraud in medical leave?
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