STF sets trial on mandatory retirement of public employees at age 75
The Supreme Federal Court (STF) has scheduled a trial of extreme relevance for Brazilian public administration: the definition of the immediate applicability of mandatory retirement at age 75 for public employees, according to the changes brought by the 2019 Pension Reform (Constitutional Amendment 103/2019).
The Context of the Trial in the STF
Minister Flávio Dino has released to the virtual plenary the trial that will define the functional future of thousands of workers who work in public companies and mixed-capital companies. The central controversy lies in whether the rule of mandatory retirement, provided for in article 201, § 16, of the Federal Constitution, has full and immediate effectiveness or whether it depends on a specific complementary law to regulate the dismissal of these professionals.
The case that originated the general repercussion involves a former employee of the National Supply Company (Conab). After turning 75, her contract was terminated based on the age limit. The defense argues that the automatic application of the rule violates labor rights and that the STF already has precedents indicating that the mandatory retirement would not originally extend to employees governed by the CLT, even in the public sector.
The Thesis of the Rapporteur: Minister Gilmar Mendes
For the rapporteur of the process, Minister Gilmar Mendes, the rule introduced by the Pension Reform is self-applicable. In his vote, the magistrate emphasizes that the objective of the rule is to promote turnover in public positions and guarantee the sustainability of the social security system, regardless of the nature of the legal bond (statutory or CLT).
“In the case of mandatory retirement – and not spontaneous – the employee’s inactivation is independent of the manifestation of will of him or the employer, the attainment of the age limit together with the minimum contribution time being sufficient conditions for his inactivation.”
According to the understanding that has already received favorable votes from Ministers Alexandre de Moraes, Cristiano Zanin, and Dias Toffoli, the public employee who reaches 75 years of age will be automatically dismissed, provided that he has fulfilled the minimum contribution time. If he does not have the necessary time, he must remain in the position only until he reaches this basic social security requirement.
Impacts on State-Owned and Mixed-Capital Companies
The decision will have “General Repercussion”, which means that the understanding established by the STF must be followed by all courts in the country. The practical impact is vast, directly affecting giants such as:
- Petrobras (Mixed-Capital Company);
- Banco do Brasil and Caixa Econômica Federal;
- Correios and Conab;
- State, district, and municipal public sanitation and energy companies.
Until then, there was legal uncertainty about whether these workers could remain in their positions indefinitely or whether they would be subject to the same “expulsion” that affects judges, prosecutors, and statutory servants.
Difference between Spontaneous and Mandatory Retirement
It is essential to distinguish the two institutes legally. Spontaneous retirement occurs by the will of the worker and, according to consolidated jurisprudence of the STF (ADIs 1.721 and 1.770), does not automatically break the employment bond. Mandatory retirement is a constitutional imposition based on the age criterion.
The challenge that the Supreme Court faces is to reconcile the protection of employment provided for in the CLT with the constitutional rule that limits the exercise of public functions up to a certain age. If the STF confirms the immediate application, there will be no need to pay a fine of 40% of the FGTS or prior notice due to the nature of the termination, which arises from a legal/constitutional determination that cannot be overcome.
Conclusion and Next Steps
The trial is scheduled to take place in virtual mode. Experts point out that the trend is towards confirmation of Minister Gilmar Mendes’ thesis, establishing a necessary standardization for the public sector. However, Flávio Dino’s request for a review demonstrated that there are still points of reflection on how this transition should occur for those who are already in the exercise of the function.
Stay tuned to legal updates, as this decision will define the future of the careers of thousands of Brazilians who have dedicated decades to public service under the CLT regime and who now face the age ceiling of productive permanence in the State.