Dismissal for cause over cannabis possession: the limits of managerial power and the proportionality of the penalty

Dismissal for cause is the harshest sanction of the employment contract. Precisely for that reason, applying it requires rigor. A recent decision by the 4th Labor Court of Manaus (Regional Labor Court of the 11th Region) illustrates the cost of applying it without the requirements of legal typicity and proportionality, and serves as a preventive warning for employers.

The case: from dismissal for cause to no-cause dismissal

During a routine search at the gatehouse, a truck driver's assistant was found carrying a matchbox containing cannabis, less than a gram according to the employee. The company applied dismissal for cause, framing the conduct as misconduct and dishonesty (Article 482 of the Labor Code), and terminated the contract without paying severance.

The court converted the dismissal for cause into a no-cause dismissal. For the judge, possession of a minimal amount of a narcotic, with no evidence of use in the workplace and no repercussion on the contract, does not fall within the concept of misconduct, let alone dishonesty.

Dismissal for cause requires typicity, connection and proportionality

Misconduct (Article 482, "b") is a broad category, which demands even greater caution from the interpreter. The seriousness of the conduct must be real, and the penalty must be proportionate. As the decision noted, dismissal for cause produces intense economic and symbolic effects on the worker; therefore, its application requires consistent grounds, strict respect for the typicity of the Labor Code, and adherence to proportionality and reasonableness.

In this case, the company's own representative confirmed that the employee never smoked at work. There was no sign of dealing or sharing, nor any demonstrated material or moral harm. In short, the connection between the conduct and the employment contract was missing.

Private conduct, with no repercussion at work

The underlying point is the boundary between managerial power and the worker's private life. Conduct that occurs outside work, with no measurable harm to professional performance, belongs to the employee's personal sphere. Managerial power finds its limits in the worker's fundamental rights, especially in human dignity and the protection of private life.

In the words of the decision itself, the company is not a police authority nor a guardian of morals and good customs. The personal search to which an employee may be subjected has, as its only legitimate purpose, the protection of company property or of order in the workplace.

What the Supreme Court has already decided

The decision also rests on what the Federal Supreme Court (STF) established in RE 635,659 (Theme 506): possession of up to 40 grams of cannabis for personal use is not a crime, but rather an administrative offense. If the criminal legal order itself does not treat possession of a small amount as a crime, framing it as labor dishonesty proved, in the concrete case, disproportionate.

The cost of a wrongly applied dismissal for cause

Converting a dismissal for cause has a price. Here, the net award was around R$ 49,000. Beyond the severance amounts that the dismissal for cause sought to avoid (notice, proportional 13th salary and vacation, FGTS and the 40% penalty), two significant sums were added: compensation for the accident-related job-security period, because the employee was on accident-related sick leave (Precedent 378 of the TST), and moral damages of R$ 20,000, since, in the subtext of the accusation, the worker was labeled a "pothead."

A company that tries to pay almost nothing by applying dismissal for cause may end up bearing everything it would have avoided in an ordinary dismissal, plus moral damages and job security. The move backfires.

The scale of the decision

It is important to place its reach. This is a first-instance ruling, issued by a single Labor Court, and still subject to appeal. It is not a binding thesis nor a consolidated position of the higher courts. Even so, the reasoning on the typicity and proportionality of dismissal for cause is consistent and recurring, and serves as a benchmark of caution.

How the firm works

Assessing the viability and proportionality of a dismissal for cause, structuring internal conduct policies, and defending companies in cases discussing the validity of a dismissal are part of the firm's corporate employment practice. Each case, however, depends on its own circumstances, the facts and the documents.

Conclusion

Not every conduct that is objectionable from the company's standpoint authorizes the harshest penalty of the employment contract. Dismissal for cause requires real seriousness, a connection to work, and proportionality. Applying it to private conduct, with no repercussion at work, tends to be reversed, and the reversal is costly. Before deciding on a for-cause dismissal, the question to ask is always the same: does the conduct have a concrete connection to work, and is the penalty proportionate to it?

Reference basis for review

• Labor Code (CLT), Article 482, "b" (misconduct) and caput (dishonesty), and the principle of proportionality in applying penalties.
• Precedent (Súmula) 378 of the TST, on accident-related job security.
• STF, RE 635,659 (Theme 506), on the non-criminal nature of possessing cannabis for personal use.
• STF, ADIs 6050, 6069 and 6082, on the judge not being bound by the caps of Article 223-G, § 1, of the CLT when setting moral damages.
• Ruling of the 4th Labor Court of Manaus (Regional Labor Court of the 11th Region), which converted the dismissal for cause into a no-cause dismissal.
• Brazilian Bar Association Rule (Provimento OAB No. 205/2021), to preserve the informational nature of the content.

Content of a merely informational nature. It does not constitute legal advice, an offer of services or a promise of results. Any concrete analysis depends on the facts, the documents and the context of each case.