A atividade empresarial e os limites no exercício do jus varandi: o uso do contrato de experiência antes da promoção do empregado e o cabimento da retrocessão

Abstract

In this work, we discuss the limits of corporate jus variandi, especially the legal validity of changing the position of its employees, of conditioning the worker to the submission of a prior period of probation, before definitively effecting his promotion and, finally, whether it is possible to order his retrocession to the previous position, if he proves to be unfit in the new function. The debate on these issues is justified, as the law does not provide for the probationary contract prior to promotion and there is a doctrinal and jurisprudential consensus against the validity of retrocession. Meanwhile, several workers are dismissed, only for not being able to do well in the new position, when, in our view, the risk of dismissal would be reduced, if the contract of tests before promotion were applied and agreed to return to the previous position. Regarding the methodology, we used bibliographic and jurisprudential research on the subjects. Our approach begins by debating the limits of business autonomy in managing its workforce. Then, we discuss the advantages (or not) of career promotion and scrutinize the legal requirements to change employment contracts. Finally, we analyze the importance given by the Federal Constitution in the search for full employment and in guaranteeing people a decent job. After the research carried out, we developed a critical, legally valid conclusion, aligned with the constitutional bases and capable of showing society that the probationary contract, used only at the time of hiring the worker, can be applied, by analogy, before his definitive promotion. Admitting this possibility not only demonstrates the prudence of the entrepreneur before consolidating the employee in a new position, but also honors other values, among them, managerial autonomy (jus variandi), the protection of the worker himself and the preservation of employment. Finally, we conclude that, at the end of the trial period, if the entrepreneur understands that the promotion was not feasible, it will be possible to return the worker to the previous position and salary, without this characterizing an unlawful act by alteration in pejus of the contract.