INSS Must Bear the Cost of Withdrawal of Woman Threatened by Domestic Violence

The Sixth Panel of the Superior Court of Justice (STJ) ruled that the National Social Security Institute (INSS) must bear the leave of a woman threatened by domestic violence who has to take leave from work to protect herself.

In the panel’s view, such situations offend the physical or psychological integrity of the victim and are comparable to the insured woman’s illness, which justifies the right to sickness benefit, especially because the Constitution provides that social assistance shall be rendered to whoever needs it, regardless of contribution.

In the same judgment, the panel established that the judge of the court specialized in domestic and family violence – and, in the absence of such a judge, the criminal court – has jurisdiction to adjudicate the request for maintenance of the employment relationship, for up to six months, on account of the victim’s leave from work, as provided for in Article 9, paragraph 2, item II, of the Maria da Penha Law (Law 11.340/2006).

The maintenance of the employment relationship is one of the protective measures the judge may take in favor of the woman victim of violence, but, as Justice Rogerio Schietti pointed out, the law did not determine who bears the burden of the leave – whether it would be the employer’s or the INSS’s responsibility – nor did it clarify whether it is a case of suspension or interruption of the employment contract.

Legal nature

Schietti explained that, in cases of suspension of the contract – such as unjustified absences and disciplinary suspension, for example –, the employee does not receive wages, and the period of leave is not counted as length of service. In cases of interruption – vacation, maternity leave, the first 15 days of leave due to illness and other situations –, the employee is not required to render services, but the period is counted as length of service and the salary is paid normally.

“The legal nature of interruption of the employment contract is the most appropriate for cases of leave of up to six months on account of domestic and family violence, given the teleological interpretation of the Maria da Penha Law, which came to give concrete form to the duty assumed by the Brazilian State to protect women against all forms of violence (Article 226, paragraph 8, of the Federal Constitution)”, the rapporteur declared.

Regulatory gap

As to the burden of the protective measure, the magistrate stressed that the legislator did not include the period of leave provided for in the Maria da Penha Law among the categories of social security benefits listed in Article 18 of Law 8.213/1991, which left the victims of violence unprotected.

“The victim of domestic violence cannot bear the harm resulting from the imposition of a protective measure in her favor. In the face of the legislative omission, we must resort to the analogical application, which is a process of integration of the law in view of the existence of a regulatory gap” – he stated, justifying the adoption of sickness benefit. According to the panel’s understanding, the first 15 days of leave must be paid directly by the employer, and the remainder, by the INSS.

Documentation

The panel also established that, to prove the impossibility of appearing at the workplace, instead of the health certificate, the victim must present the homologation document or the judicial determination of leave on account of domestic violence. The Justices further established that the employee shall be entitled to the vacation accrual period, from the leave – which, according to the law itself, shall not exceed six months.

“In truth, the Judiciary still needs to evolve in the optimization of the principles and rules of this new legal subsystem introduced into our legal order with Law 11.340/2006, overcoming hermeneutic timidity”, said Schietti.

Jurisdiction

The appeal adjudicated by the Sixth Panel was filed by a woman against a decision of the Court of Justice of São Paulo (TJSP) which did not grant her request for leave from employment on account of domestic violence. The request had already been denied at first instance, which understood that the case fell within the jurisdiction of the Labor Court.

The victim claimed that she suffered death threats from her former partner and that she had already obtained the granting of some protective measures, but she still felt unsafe. As there was no shelter in her city, she moved and stopped appearing at her job.

Before the STJ, she requested the recognition of the jurisdiction of the ordinary courts to adjudicate the case, in addition to the maintenance of the employment relationship during the period in which she was on leave, with the consequent rectification of the absences recorded on her time card.

Emergency situation

In his vote, Justice Schietti stressed that the reason for the leave in such situations does not arise from an employment relationship, but from an emergency situation provided for in the Maria da Penha Law with the aim of guaranteeing the physical, psychological and patrimonial integrity of the woman; therefore, the adjudication falls to the ordinary courts, not the labor courts.

“As regards the jurisdiction to assess the request for imposition of the measure of leave from the workplace, there is no doubt that it falls to the judge who previously recognized the need to impose protective measures to assess the claim”, he concluded.

With the granting of the appeal, the criminal court that set the protective measures in favor of the victim must assess her retroactive request for leave. Should it recognize that the woman is entitled to the leave provided for in the Maria da Penha Law, it must determine the rectification of the time record and issue an official letter to the company and to the INSS so that they arrange for the payment of the days.

Source: STJ

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