Employee uses evidence that violates LGPD and is punished with just cause

Canaltech reported a recent decision by the Labor Court in São Paulo, which dismissed a request for indirect termination as unfounded due to the employee having included evidence that violates the General Data Protection Law. Dr. Matheus Puppe, partner in the TMT, Privacy & Data Protection area at Maneira Advogados, was interviewed to comment on the matter.

Employee uses evidence that violates LGPD and is punished with just cause

By Claudio Yuge | March 3, 2023

The General Data Protection Law (LGPD) came into force on August 1, 2021, but it was only last week that the National Data Protection Authority (ANPD) published the long-awaited Dosimetry and Application of Administrative Sanctions Regulations. In other words, now is when the punishments really start to be applied, and, as expected, there is already a controversy on this subject.

This week, a nurse who had been trying to prove in court alleged labor violations committed at the hospital where he worked had his request for indirect termination of his contract jeopardized, for having added evidence to the file that violates the LGPD.

Indirect termination is characterized by the employee's request for dismissal and, unlike the dismissal request, it is carried out when the employer does not comply with the law or the agreement signed at the time of hiring. In the action, the man alleges that the company committed several misconducts and failed to comply with obligations, including the requirement to double shifts, care for more patients than determined by the Nursing Council and make “outside” payments.

However, in order to prove some facts, the professional gathered spreadsheets from the Hospitalization Management System. In defense, the hospital found that the author “committed a very serious offense by inappropriately appropriating confidential documents”, to which he only had access due to the position he held. The institution made an injunction request for data protection protection and the documents were excluded from the files. In view of this fact, the company also requested the conversion of the contractual termination into a dismissal for just cause.

Employment judge's decision considers serious misconduct

The analysis by judge Edite Almeida Vasconcelos, from the 81st Labor Court of São Paulo-SP, considered that “the author violated the intimacy and privacy of third parties, natural persons who were clients of the defendant, and violated the General Data Protection Law – LGPD, using sensitive data in an illicit manner. Furthermore, it caused the company to violate the LGPD, as it was responsible for guarding the sensitive data of its customers. Finally, the complainant failed to comply with the defendant’s express rules, of which the complainant was duly informed.” For the judge, the worker's attitude constitutes serious misconduct.

The worker's request for indirect termination was judged unfounded and he was held responsible for the misconduct committed, being punished with dismissal for just cause. The nurse can still appeal against this decision.

This episode draws attention to the change in behavior that the LGPD should already be causing in the corporate environment — something that the start of fines and sanctions should accelerate, according to specialist Matheus Puppe, partner in the TMT, Privacy & Data Protection area at Maneira Advogados.

“The LGPD is for everyone and must be respected, regardless of whether they are an individual or legal entity, company or employee. This decision corroborates the fact that the (not so) new law requires changes in behavior to respect the respective principles, so that LGPD sanctions are not only imposed by the ANPD, but by any judicial body, as in this case the labor court. Excesses can and must be curbed, after all, the protection of personal data is now a right constitutional.”

https://canaltech.com.br/seguranca/employed-usa-provas-que-violam-lgpd-e-e-punido-com-justa-causa-241998/