Higher Labour Court, Sub-section 1 specializing in individual disputes, São Paulo Transporte S.A. v. Gilmar Ramos Da Silva, 5 March 2003

Constitution of Brazil

Article 5

(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
Role of International Law:
Establishment of a jurisprudential principle based on international law
Type of instruments used:

Ratified treaties;1 Instruments not subject to ratification2

Discrimination on the basis of HIV status/ Constitution/ Dignity of the individual/ Establishment of a jurisprudential principle based on international law

The São Paulo Transporte S.A. company, knowing that the person concerned was carrying HIV/AIDS, told him he was being dismissed, citing technical reasons.
The worker initiated a lawsuit, demanding reinstatement in his job and the payment of damages by the company.
The court of first instance accepted the claim by the plaintiff, and after a series of appeals, the case came before the Higher Labour Tribunal.

The company opposed the worker’s claim, arguing that the Brazilian legal system contained no legal provision that recognized the worker’s right to stability, and that the provisions in the Federal Constitution regarding the democratic rule of law and dignity of the human person were too generic in their formulation to support the right to reinstatement in a job, especially when no accident at work or work-related illness was involved. It went on to argue that there were other diseases with the same social impact as HIV/AIDS which did not give sick employees the right to job security.

The Court considered that the conduct of the company, which, even though it knew of the worker’s illness, went ahead and fired him, was repugnant in terms of the dignity of the human person, which was a fundamental principle of the Federal Republic of Brazil, and one which was present in the 1988 Federal Constitution.
In addition, the Tribunal was mindful that it was not the case that the severity of a disease may allow a worker to remain within a company despite behaviour that was not allowed. But, in this case, the company, informed of the worker’s illness, dismissed him on technical grounds, which it then failed to prove at trial, leading to the conclusion that the company had no reason to dismiss the plaintiff other than the disease itself.
The Court argued that in the Brazilian legal system there exist sufficient legal rules that prohibit discriminatory conduct. These legal rules include not only the Federal Constitution but also ILO Conventions Nos. 111 and 117, and the ILO Declaration on Fundamental Principles and Rights at Work, 1998. Accordingly, the Court held that with the current global concern to eradicate discriminatory practices, it was impossible for judges to deny the court’s protection to a worker with HIV/AIDS, even in the unlikely event of a legal regulatory vacuum.

As a result, calling the dismissal arbitrary and discriminatory, the Court upheld the plaintiff’s claim and ordered his reinstatement and the payment of damages to him by the company.

1 ILO Convention No. 111 on Discrimination (Employment and Occupation), 1958; ILO Convention No. 117 on Social Policy (Basic Aims and Standards), 1962.

2 ILO Declaration on Fundamental Principles and Rights at Work, 1998.

Full text of the decision