Aplicabilidade da estabilidade ao empregado da Empresa Brasileira de Correios e Telégrafos - ECT.

Abstract

The present work of conclusion of course is the result of a careful bibliographical and documentary research, in the scope of the Public Administration, in special, as far as the servants and public employees are related. The Brazilian administrative system is constituted in Direct and Indirect Administration, by which it develops public service, aiming at serving the collective interest. The Direct Administration is composed by the Union, States, Federal District and Municipalities, that provide public activity directly through its organs. And the Indirect Administration is a tool for the decentralization of administrative activities, where the transfer of the execution of services to other legal entities, whether public law, such as public autarchies and foundations, or private law, through companies Public companies and mixed capital companies. Regardless of the legal nature of the entity, considering the relevant nature of the provision, are subject to a complex of rules and principles. The art. 37 of the Federal Constitution of 1988, provides the members of the Direct and Indirect Administration with the obligation to observe the principles of legality, impersonality, morality, publicity and efficiency. Therefore even the entities governed by the rules of Private Law, are affected by the rules of Public Law. This is the case of the Brazilian Postal and Telegraph Company (ECT), with legal personality of a private company, but receiving treatment from the Public Treasury, mainly regarding reciprocal tax immunity, impenorability of its assets and differentiated procedural deadlines. That is because ECT provides public service with exclusive competence of the Union. In view of the fact that this company has a hybrid or mixed legal regime, in which the public character, often on the private, despite, constitutional forecast, jurisprudence of the superior courts and understanding of majority doctrine, to the contrary, was objectified To discuss the possibility of the applicability of stability, provided for in art. 41 of the CF / 88, to its employees. In order to do so, common and specific characteristics pertinent to public servants and public employees, including the ECT, were analyzed, verifying legal provisions, jurisdictional and doctrinal positions regarding stability, in the sense of understanding the feasibility of implementing it to the state employees. It is clear from the current legal scenario that this constitutional guarantee is inapplicable to the case under review, since the institute is intended for those approved in a public competition, invested in a public position effective, after three years of exercise and satisfactory evaluation by a competent committee. On the other hand, following a minority understanding, based on constitutional and infraconstitutional principles, such as efficiency and supremacy of the public interest, in addition, the special nature of ECT, which enjoys privileges inherent in the Public Treasury, understanding is in the perspective of deepening the arguing the need to increase the incidence of this Law that converges to the public interest, either from the point of view of the employee, who will become more secure, or Public Administration, seeking the efficiency of the public service.