The Regional Court of Labor Appeals of Minas Gerais (TRT) ordered Santander to extend to a former employee a special bonus that had been paid to some employees. The bank demonstrated that there were differences in length of employment, activities, positions, locations, and periods, in addition to arguing that the payment of bonuses is within its discretion, but the reporting judge considered these arguments to be insufficient and considered the practice discriminatory as against the employees who did not receive them.

The decision reverses the concept of a bonus, inasmuch as it considers discriminatory the granting of one-off benefits or payments to an individual whom the company wishes to recognize, which is a practice not prohibited by law. On the contrary, labor legislation itself provides for the possibility of paying spontaneous gratuities to employees.

These payments do not represent an affront to the principle of the salary equality provided for in item XXX of article 7 of the Federal Constitution. Unlike salaries, employers are not required to pay bonuses. They do so out of liberality. The principle of equality seeks to guarantee all the same opportunities and working conditions, which does not prevent one or another employee from being rewarded for different performance. The employer cannot have this possibility taken away.

Decisions such as this one by the Minas Gerais Regional Court of Labor Appeals discourage companies from paying one-off bonuses and rewards based on merit to certain employees who stand out for some subjective reason. After all, when extended to all, the payment no longer represents a bonus or individual recognition.

If this theory is upheld, the solution for the employer will be to apportion the amount of the bonus to everyone or simply not pay any more bonuses to anyone. Another point is that the different employee, who stands out, who gives his all and seeks the best, will also be discouraged. What additional benefit will he get if his colleague who does the minimum also receives the same bonus?

In summary, the disincentive is twofold: to companies, which will not have reasons to pay a penny more than the law requires, and employees who will not have the motivation to reach a performance level above the acceptable minimum. 

The recent approval of the Labor Reform (Draft Bill No. 6.787-B/2016) may contribute to creating a different view in the courts on the subject: the new paragraph 4 of article 457 of the Consolidated Labor Laws provides for the possibility of rewarding an employee or group of employees "due to performance greater than what is ordinarily expected."

With this express legal provision authorizing individual payments, employees may feel motivated to stand out and employers may be motivated to reward them for it.

Case: 0010353-68.2014.5.03.0077

Source: Regional Court of Labor Appeals of the 3rd Region - June 28, 2017