Aplicação da Convenção nº 111 da Organização Internacional do Trabalho na solução de casos de dispensa discriminatória de empregado motivada pelo câncer: uma análise da jurisprudência do Tribunal Superior do Trabalho no período de 2016-2021

Abstract

Employees suffering from cancer, in view of the stigma associated with the disease, are subject to discrimination, even being fired without just cause, which gives rise to labor claims in which the discriminatory nature of dismissal is discussed. Considering that Convention No. 111 of the International Labor Organization (ILO) is the main norm of international labor law in combating discrimination in labor relations, its use by the Superior Labor Court (TST) in the assessment and judgment of actions on dismissal without just cause of employees with cancer is the object of this study. The normative content of human dignity was analyzed, from the perspective of equal dignity (chapter 1) and its corollaries, the principles of equality and non-discrimination (chapter 2), in addition to the structuring of the ILO, the procedure for drafting the Conventions and specifically ILO Convention No. 111 (chapter 3), through bibliographic research. Finally, TST decisions were analyzed that, in the period from January/2016 to June/2021, mentioned ILO Convention No. 111 in the solution of actions on discriminatory dismissal of employees with cancer, through the tool "Research of Jurisprudence" ( new system), available on the TST website. Mentions to ILO Convention No. 111 were classified by qualitative criteria, into direct mentions (the international standard was used as reasons for deciding) and indirect mentions (the international standard was included in the appealed decision or in the citation of judicial precedents). Finally, adopting as a criterion of relevance the existence of direct mention in decisions representing a percentage greater than 50% of the sample, it was concluded that Convention No. 111 of the ILO was relevant, being mentioned directly in 53.62% of the decisions examined, in addition to being implicitly present in the decisions that invoked Precedent No. 443 of the TST, as this statement of jurisprudence has, in almost half of its precedents, direct mention of the international treaty under discussion.