Refusal to vaccination and dismissal of employees for just cause

an analysis in the light of constructive democracy theory

Abstract

Objectives: The present article aims to investigate whether an employee's refusal to be vaccinated constitutes sufficient grounds for termination with cause, as provided in Article 482 of the Consolidation of Labor Laws (CLT). The analysis is conducted in light of the Theory of Constructive Democracy, which suggests that a society is more democratic when individuals have greater influence in shaping their own reality. The central question is whether this refusal constitutes a legitimate exercise of the fundamental right to freedom or, on the contrary, justifies dismissal for cause, especially in the context of the pandemic crisis.

Methodology: The research method used is qualitative-deductive, based on bibliographic and documentary research, including books, scientific articles, court rulings, and legislation. The article discusses democratic theories, from Hans Kelsen to the Theory of Constructive Democracy, aiming to determine whether the employer's vaccination requirement can be considered legitimate in the Brazilian democratic context. The grounds for dismissal for cause, especially acts of insubordination and indiscipline, as provided in the legal framework, are also analyzed.

Results: The study concludes that although legislation allows dismissal for cause in cases of refusal to be vaccinated, this measure should be applied with caution, respecting the principle of proportionality and the social value of work. It was observed that, under the Theory of Constructive Democracy, there is room for employers and employees to jointly and democratically decide on the best solution to the issue of vaccination in the workplace.

Contributions: The article contributes to the debate on the tension between individual freedom and collective protection in health crisis situations, proposing the application of the Theory of Constructive Democracy as a way to reconcile conflicting interests between employers and employees, without the need for severe state impositions.