WHO IS THE OBLIGATION TO PAY THE WAGES OF THE EMPLOYEE WHO HAD THE SOCIAL SECURITY BENEFIT DENIED?

For a long time, the understanding that the company was responsible for paying the salaries of the employee who had his social security benefit denied by the INSS remained consolidated.

However, in a recent decision, the 2nd Panel of the TRT-18 reformed the sentence of the 4th Labor Court of Goiânia, which had sentenced an employer to pay the employee the wages of the entire period that remained away from work to treat the sequelae of a accident occurred before the employment contract. During the leave, the employee had his application for illness benefit rejected, given that the INSS stated that the incapacity for work was prior to the beginning of his contributions to Social Security.

According to the presiding judge in the case, Judge Platon Teixeira Filho, the company would not be responsible for the employee’s wages after the first 15 days of leave, as it was not proven that after the INSS denial, the employee would have expressed an intention to return to work and would not have been accepted by the employer.

What happens in practice is that many companies end up being held responsible for the employee’s wages when the INSS discharges him, but the employee’s private physician considers him unable to work, he does not show up for work and appeals against the INSS. In this case, he is without salary and without benefit many times for long periods. And when the INSS denies the benefit, the employee files a labor claim against the company that ends up being ordered to pay the employee’s salary during this period.

Thus, this decision is very important as a paradigm for similar cases, in order to reduce the company’s burden in the case of employees’ leaves that drag on and generate liabilities for the employer.

It’s important to highlight, that unlike this specific case, there is a very common situation in which the employee receives social security discharge, that is, the INSS claims that there is no work disability, the employee presents himself to the employer to resume his work activities and when he goes through an evaluation with an occupational physician, he understands that the employee is unable to carry out their work activities.

This situation is known as social security limbo, that is, the taxpayer (employee) does not receive a salary from the company (employer), nor a benefit from the INSS, as both disagree about their ability to go back to work.

In this case, the jurisprudence has the majority understanding that the responsibility for the payment of this employee’s wages lies with the employer, who may claim before the INSS contesting the aptitude for work report.

Finally, the fact is that if the employee is not receiving the social security benefit, it means that the contract is not suspended, and it is the employer’s responsibility to pay wages, provided the employee presents himself for work.

Further information can be obtained from our labor team.

Raquel Selene Rizzardi

Guarnera Advogados