Regional Labour Tribunal of the Third Region, First Chamber, Osorio Leites Edson v. Sogal - Sociedade de Onibus Gaucha Ltda., 22 June 2011, Case No. TST-RR-61600-92.2005.5.04.0201
Constitution of Brazil
(1) Norms that define fundamental rights and guarantees are immediately applicable.
(2) The rights and guarantees expressed in this Constitution do not exclude other rights stemming from the system and principles adopted by this text or stemming from international treaties to which the Federal Republic of Brazil is a party.
(3) International treaties and conventions on individual rights that are adopted by both houses of the Congress, in two rounds, by three fifths of the votes of the members of each house will be the equivalent of constitutional amendments.
Protection against discrimination in employment and occupation
Establishment of a jurisprudential principle based on international law
Discrimination on the basis of HIV status/ Dismissal/ Establishment of a jurisprudential principle based on international law
Following the dismissal of a worker carrying the HIV virus, an appeal was lodged against the sentence of the lower court, which held that there was no national legal provision that guaranteed employment to a worker carrying the HIV virus, and that, therefore, the worker could be dismissed without grounds. The lower court ruled that this would only be annulled if there had been a discriminatory practice, circumstances that were not proven by the worker in question.
In this respect, the Court declared that according to its own case law, the dismissal of a worker carrying the HIV virus was presumed to be discriminatory, and that the responsibility of proving that the dismissal was in accordance with other, legitimate reasons lay with the employer.
Likewise, the Court observed that this was in agreement with the international standard enshrined in both ILO Recommendation No. 200 on HIV and AIDS and the World of Work, adopted in 2010, and ILO Discrimination (Employment and Occupation) Convention No. 111.
In this respect, the Court stated that the Recommendation requires member States to consider the possibility of offering protection equal to that established by Convention No. 111 with the aim of preventing all discrimination based on the real or supposed condition of being an HIV carrier.
Similarly, Convention No. 111 establishes the obligation of all ratifying member States to formulate and apply a national policy that aims to promote by methods appropriate to national conditions and practice, equality of opportunity and treatment in respect of employment and occupation, with a view to eliminating any discrimination and the obligation, among others, of repealing any statutory provisions and modifying any administrative practices which are inconsistent with the policy.
Moreover, the ILO Committee of Experts on the Application of Conventions and Recommendations highlighted the issue of distribution of the burden of proof, underlining the need to deal with matters related to the violation of human rights with flexibility in terms of the production of evidence.
In light of the above, the Court ordered the reinstatement of the worker to his post, the payment of wages owing and the recognition of all the rights inherent in the labour relation from the date when the dismissal took place.