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Unanimous Decision of the 7th Panel of the TST Confirmed the Dismissal for Just Cause of an Agent from the Fundação Casa de Ribeirão Preto, Filmed Acting as a Security Guard in a Supermarket While Receiving Sick Leave, and Reinforced the Breach of Trust and Improbity Found in a Disciplinary Administrative Process Opened by the Institution in the Interior of São Paulo.
In a decision released on January 17, 2025, the 7th Panel of the TST rejected the appeal of a socio-educational support agent from the Fundação Casa, dismissed for just cause after being caught working as a security guard in a supermarket while on sick leave. According to the panel, the conduct constituted a breach of trust and administrative improbity, legitimizing the dismissal applied based on an internal disciplinary process.
The case involves medical leave between December 2014 and January 2015 and dismissal in February 2016, after the oversight department of the Fundação Casa analyzed footage of the worker in the security area of the commercial establishment. By confirming the understanding of the Regional Labor Court of the 15th Region, the TST reinforced that, in a review appeal, it is not within its purview to reassess facts and evidence, limiting itself to verifying the correct application of the law to the recognized circumstances in previous instances.
How the Case Began at the Fundação Casa
The agent had been working at the Fundação Casa in Ribeirão Preto since 2002, in the position of socio-educational support.
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According to the institution, between December 2014 and January 2015, he was on leave for sick leave, justified by health problems that would prevent him from performing his regular activities.
During the same period, according to internal investigations, the worker began to work as a security guard at a local supermarket, a situation that had not been communicated to the Fundação Casa or to the social security agency.
A dissatisfied colleague, having to cover twice the hours to make up for the absence, reported the case to the oversight department, which opened a disciplinary administrative process to investigate potential fraud and noncompliance with functional duties.
Administrative Process, Video, and Dismissal for Improbity
In the administrative process, the Fundação Casa gathered documents and video footage that would show the agent in a security position, in the area behind the supermarket counters, observing the flow of customers and internal activities.
Based on this body of evidence, the institution concluded that there was administrative improbity and a breach of trust, recommending dismissal for just cause.
The decision was formalized in February 2016, terminating the employment relationship that began in 2002.
For the institution, the fact that the employee was fit to work as a security guard while claiming incapacity to work at the Fundação Casa made it impossible to continue the employment relationship, especially given the socio-educational nature and the responsibility required in attending to adolescents under measures.
Labor Action and Initial Reversal of Dismissal for Just Cause
Dissatisfied, the agent filed a labor lawsuit to annul the just cause dismissal and obtain his reinstatement.
In the petition, he argued that the complaint was false and claimed that he had been on leave due to a fracture in his toe, which, according to his version, would prevent him from standing for long periods, a typical condition for a security function.
The worker also stated that he had only gone to the supermarket as a customer on one occasion, when he was photographed and filmed by the oversight team.
As a defense element, he presented a receipt to prove his purchase of products at the establishment on the same date the footage was recorded.
In the first instance, the labor court accepted the employee’s argument, found that there was not sufficient robust evidence that he was actually providing services to the supermarket, and ordered the annulment of the just cause and his consequent reinstatement to his position at the Fundação Casa.
Turnaround at the TRT-15 with Image Analysis
Upon reexamining the case, the Regional Labor Court of the 15th Region, based in the interior of São Paulo, reached a different conclusion.
The regional court analyzed the footage produced by the Fundação Casa and understood that the agent was not behaving as an ordinary consumer waiting for the release of his purchases, but rather as someone actively engaged in security activities in the area behind the counters.
For the TRT-15, the worker’s positioning, the way he observed movements, and the location where he was situated in the supermarket indicated he was performing a security function.
Based on this understanding, the panel concluded that the conduct broke the trust necessary for the employment relationship and made it unsustainable to maintain the bond, validating the dismissal for just cause.
Foundations of the TST in Upholding the Dismissal for Just Cause
At the TST, the review appeal of the worker was reported by Minister Agra Belmonte.
When voting to uphold the decision of the TRT-15, the reporter emphasized that the regional court had expressly recognized the existence of sufficient evidence of the serious misconduct attributed to the employee, particularly based on the video footage analyzed.
The minister highlighted that, in extraordinary jurisdiction, the TST is prevented from re-evaluating the factual-evidentiary set of the records, according to Summary 126, which prohibits the reexamination of facts and evidence.
Thus, once the TRT-15 established the premise that the agent worked as a security guard during medical leave, it was the role of the TST to only apply the law based on that framework, without reconsidering the reality already acknowledged.
The 7th Panel concluded unanimously that simultaneous engagement in another job, during a period of leave for sick leave, constitutes a violation of good faith, contractual loyalty, and mutual trust, essential elements for the continuation of the employment relationship.
In this context, the dismissal for just cause was deemed a proportionate and legally supported measure.
Medical Leave, Sick Leave, and Breach of Trust
From a legal standpoint, the case examined by the TST involves not only the misuse of medical leave but also the credibility of the social protection system and personnel management in public institutions.
The worker, by claiming incapacity for one function while normally working in another, calls into question the veracity of the information provided and the entire basis for the social security benefit received.
The labor court understood that the conduct undermines the trust that should guide the bond between employee and employer, especially when it concerns an organization focused on serving adolescents in socio-educational situations.
The combination of sick leave with parallel paid activity, without formal communication, was classified as improbity and a breach of trust sufficient to justify the motivated dismissal.
Repercussions for Employers and Workers
By confirming the understanding of the TRT-15, the TST sends a significant signal to public and private employers about situations in which employees on sick leave are found engaged in paid external activities.
The precedent reinforces that internal investigation, gathering evidence, and respecting due administrative process are fundamental to sustaining maximum punishment like just cause dismissal.
For workers, the case highlights that the misuse of medical leave outside legal parameters can lead to severe consequences, including loss of employment for serious misconduct and the consolidation of this decision in higher instances, if the collected evidence is deemed adequate by the courts.
The ruling, identified as Ag AIRR 12062-62.2016.5.15.0004, consolidates this position within the 7th Panel.
In your opinion, did the TST act correctly in maintaining the just cause of the agent from the Fundação Casa who worked as a security guard during sick leave, or was the dismissal an excessive measure for the specific case?
Tipica pessoa com grave desvio de caráter que quer ganhar dinheiro, sem o menor esforço, recebendo dois salários de fontes distintas. Mereceu a demissão e a perda do cargo. Parabéns ao TST por manter a decisão que serve de exemplo educativo para outros com desvio de caráter.
Tipica pessoas com desvio de caráter que quer ganhar dinheiro, sem o menor esforço, recebendo dois salário de fontes distintas. Mereceu a demissão e a perda do cargo.
Concordo plenamente,já conheci casos igual,e que perderam a causa.Se não estão contentes com o trabalho peçam demissão,agora perde emprêgo,credibilidade.Bem feito!!