A proteçăo ao trabalhador em face da nulidade da contrataçăo pela Administraçăo Pública

Abstract

The Brazilian Constitution establishes as a rule for appointment to public offices and positions the previously approvation by the tender, under penalty of nullity. The fixedterm contract to meet the temporary need of exceptional public interest is an exception, but there are two situations that lead its declaration: the extension of contracts beyond the time limit allowed by law, when there is no more the aspect of temporary need or hiring to work on activities that are not included on the exhaustive list of the law authorizing. In these cases, the majority jurisprudential understanding is that the contract must be declared invalid retroactively and the worker has only the right entitled to payment of the consideration agreed, upon in relation to the number of hours worked, respected the value of the minimum wage, and the values related to FGTS deposits. This placement, however, forsake an employee who acted in good faith and relied on the legitimacy of actions taken by the state, besides did not do reference about the punishment of the agent responsible for the unlawful administrative act. The systematic reading of the constitutional text reveals the necessity to maintain legal certainty, which is effective, in this case, with the protection of the worker in the face of the nullity of recruitment by the Public Administration. To do so, must be declared the invalidity of the contract with effects ex nunc, preserving the factual situation to the past tense statement, with the State ordered to compensate the work done with all sums, other than those typical of remission without cause, because the termination of the contract was made by virtue of its declaration of invalidity.