The cases of dismissal for just cause for posting videos and dances on TikTok have become more and more frequent. For example, in June of this year, an intern was fired after making a video in uniform dancing to a funk song with sexually suggestive lyrics. She recorded the video wearing the uniform and badge of the São Francisco do Sul (SC) City Hall, where she worked.
What is the legal basis for these dismissals? It is the article 482 of the CLT (Consolidation of Labor Laws), which details what situations are subject to just cause. The publications on TikTok can be framed as "an act injurious to honor or good reputation" against any person, employer and hierarchical superiors, according to two labor lawyers heard by UOL.
Is any dance a reason for dismissal? The lawyer Thomas Steppe, from the Demóstenes Pinto Advogados law firm, in Porto Alegre (RS), says that some situations are more aggravating, and others, mitigating.
"Making the video in uniform is more serious, because the employee is actually in the work environment and representing the company. If it's at his work station, like a building doorman or inside a supermarket, it's an aggravating factor. When the employee is outside his work hours, and in another circumstance, it can be a mitigating factor. It's all a matter of interpretation," declares Steppe.
What contents can lead to just cause? Some aspects will be taken into account by the company when evaluating the dismissal for just cause for posting on TikTok, says lawyer Decio Daidone Júnior, partner at Barcellos Tucunduva Advogados.
"What will be analyzed is whether there was any illegal content, incitement to crime, that is rude, offensive, slanderous, abusive, or that may invade someone's privacy, something obscene, pornographic, that is prejudiced, that negatively exposes the company's brand, that brings some damage to the company's identity. Anything that generates damage to the brand or reputation can be considered irregular," says Daidone Júnior.
Is dismissal the only punishment? Dismissal is not the only alternative for the company to act in these cases. Depending on the situation, a warning or suspension of one to 30 days may be applied.
It is a gradation of punishment, says Daidone Júnior, and companies need to act reasonably and proportionally to the damage. So, if it is a video that generated a great damage or was very harmful, it can go straight to just cause. If it is a minor fault, the company can give a written warning or suspension.
"But there is nothing in the law that requires the company to follow that gradation. The dismissal can be applied immediately," she says.
What do the decisions say? UOL analyzed four court decisions that deal with dismissals for just cause due to publications on TikTok. Two were in favor of the company and two were in favor of the dismissed employee.
Simulation of sex at work: In one of them, employees simulate sexual acts in the workplace and during working hours. The fired employee went to court to reverse the just cause.
The judges noted that the woman did not contest the veracity of the videos or that they were produced with her cell phone. The magistrates analyzed the watermark present in this and other videos and proved that the videos were recorded with her cell phone and posted on her social network.
According to the judges, the employee was aware and encouraged such acts in the workplace by lending her cell phone. "Thus, it is clear the seriousness of the act committed by the author, acting correctly the defendant in the application of just cause," the judges point out. Because of this, the just cause was not reversed.
Dancing in the morgue: In another case, female employees were fired after being recorded unmasked and dancing in front of the morgue of the hospital where they worked on November 14, 2021, during the covid-19 pandemic. They argued that the situation occurred during a birthday celebration.
One of the fired employees appealed to the courts. However, the decision of just cause was maintained.
During the process, one of the woman's bosses said that the termination occurred for "bad behavior" and that the woman was a team leader.
The fired employee's superior told the court that the little dance was not an "innocent joke", because "the services were provided in a hospital, where there were occurrences of countless deaths, showing, therefore, total disrespect to patients and their families and, consequently, with his client, the hospital.
In addition, the woman's boss said that get-togethers are allowed to take place in the hospital cafeteria and not in the hallways.
In analyzing the case, Labor Judge Marcia Sayori Ishirugi considered that dancing near the morgue "is not appropriate conduct for hospital workers, even more so during a pandemic that is causing numerous deaths.
In addition, the video had repercussions in social networks. Finally, the magistrate understood that there was a breach of trust.
Dance without disrespect: But not all decisions are favorable to companies. In one case, an employee - who posted videos in uniform at his workstation - managed to reverse the reason for his dismissal, so that it was no longer for just cause.
The judges noted that the act of doing a "brief 'little dance' in uniform is not capable of tarnishing the image" of the company, because "it does not contain any connotation of disrespect to the function performed or the name of the company.
No mention of the company name: In another case, an employee was fired after posting on TikTok a ten-second video in which she danced "in plain clothes and in an environment with a white background," according to an excerpt from the lawsuit.
Throughout the recording, visual effects and the following phrases appear: "Trigger warning"; "I have worked for 10 years in the same company"; "They call me incompetent"; and "But they don't fire the incompetent ANYTHING".
Judge Ronaldo Luis de Oliveira understood that there were not enough elements associating the employee or the publication of the video to the company.
"Even if the behavior reproduced in the video, practiced by the plaintiff, has questionable sensibility (fruit, by the way, of the indiscriminate use of social networks on the Internet, generating situations that border on the bizarre and unreasonable, such as the one presented in this case), it is certain that said media does not indicate, in its content, any express mention of the fact that the plaintiff, at that time, was an employee of the defendant," said the judge.
In addition, Oliveira noted that there were no demonstrated actions taken by the company to ascertain the real intentions of the employee to publish the video. The judge also considered that, besides the video, there is no other evidence to conclude that the employee "tried to offend the company or any of its legal representatives.
No other posts on the employee's social networks indicate the company where she was employed.
Finally, the magistrate understood that the company "assumed" that the video referred to her "not striving to properly ascertain the situation presented. And, because of this, it should not be applied the maximum penalty of the CLT, which is dismissal for cause. Thus, the judge annulled the dismissal of the employee.
Source: Portal UOL.