The Second Panel of the Superior Labor Court (TST) sentenced Pullmantur SA to indemnify a waiter’s assistant who had to undergo an HIV test to be hired to work on cruise ships. According to the legislation, it is not allowed to test the worker for HIV in procedures related to the employment relationship.
The waiter’s assistant worked for the company from July 2013 to May 2015 and, in order to be hired, the employer required an HIV test. According to the worker, the measure was abusive and discriminatory.
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Pullmantur, in its defense, justified that the test was necessary to provide eventual medication to the crew, as the periods on board were long.
The court of the 20th Labor Court of Curitiba (PR) had considered the procedure adopted by the company as legitimate, due to the nature of the activity, with permanence at sea for long periods.
The Regional Labor Court of the 9th Region (PR) upheld the sentence, which had dismissed the indemnity, considering that the requirement for HIV and drug testing, by itself, does not imply an offense to the rights of the personality, especially when based on a reasonable and intended, in a generic way, to all employees.
crime of discrimination
The reporter of the assistant’s review appeal, Minister Maria Helena Mallmann, pointed out that, according to Law 12.984/2014, the conduct of denying employment or work to people with HIV and AIDS patients is a crime of discrimination, punishable by imprisonment of one to four years and fine.
In addition, Ordinance 1.246/2010 of the Ministry of Labor prohibits the worker from being tested for HIV, directly or indirectly, in medical examinations for admission, change of function, periodic evaluation, return, dismissal or others related to the employment relationship .
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For the minister, moral damage was characterized, as the requirement of the test as a requirement for admission is discriminatory conduct prohibited by the legal system and violates the worker’s intimacy and privacy.
Unanimously, the Panel granted the appeal and fixed the indemnity in the amount of R$ 10,000.
*With information from the TST press office.
Edition: Vinícius Segalla