Class partially reform decision on overtime truck driver | almeidaconsultores
The Third Chamber of the Superior Labor Court reformed, partly arising from the decision of the 2nd Region TRT that applying Precedent 338/TST hosted the journey described in the initial and ordered the defendant, Emplal Plastic Packaging Ltda., Payable to driver Truck overtime and additional night pleaded. For the Panel, the journey described by the driver - who claimed to work from 6am until 4pm the next day with only an hour break in 15 days of the month - "was not reasonable and believable" because it would have only 2 hours range for 22 consecutive hours of work for 15 days a month.
The driver claimed in the labor complaint, who worked under the 6X1 (six working days for rest), from 8 to 23 hours, with 60 minutes of interval for rest and food. On half days, however, was on travel and meet day from early morning to dawn the next day, and still work half days off and on all holidays without receiving overtime. In his defense, Emplal flight case dj submitted timecards and stated that all overtime was paid.
The trial court upheld the journey indicated by the driver and granted all the extra hours and the extra night ensuing. The company appealed to the Regional Labor Court of the 2nd Region (SP), which upheld the sentence. The Regional relied, inter alia, the testimony of representative Emplal, concluding that the times truly worked was not annotated correctly, as alleged in the defense and to concentrate fictitious confession provided in Precedent 338 of the Superior Labor.
In resorting to the TST, the company defended the validity of attached to the process, not marked "British time", timecards and held that the journey of 22 hours indicated the driver flight case dj was "humanly impossible" to be fulfilled.
In his opinion, the Minister Maurice Godinho Delgado emphasized that, due to the legal obligation to record the workload at any employer who has more than ten employees (Art. 74, 2 of the CLT), jurisprudence walked towards that failure to submit the timecards results in the reversal of the burden of proof and, generally, the presumption of veracity working hours stated by the complainant, provided that it has not produced evidence to the contrary (Precedent 338/TST).
However, it is implicit, of course, that even with a fictitious confession, it can not achieve improbable, unreasonable and manifestly artificial result. The Rapporteur stressed that in the present case, the automatic solution flight case dj applied by common instances was not consistent with the principle of reasonableness, which should guide all judicial activity, and the likelihood that should also guide the decisions of the judicial authorities, and hurting the constitutional principles of justice and security (Preamble, Article 3, I.. article 5, / caput / all CF/88.).
According to the Rapporteur and 3rd Class, all these principles governing the existence and rationale of the judiciary and any dynamics of the lawsuit - which are not effectively vehicle unjust enrichment.
For the 3rd Class, the fictitious confession has no absolute value, may not produce results incompatible with rationality, the likelihood and the dynamics of real life. With the partial reform flight case dj of the decision, applying the aforementioned fictitious confession in Ordinary Instance flight case dj remained deferral of overtime and night shift, but limited to a shift 8h to 23h, also indicated in the application. (Dirceu Arcoverde)
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Topics Previous Foundation to pay R $ 200 thousand for collective damages TRAINEE THE PROSECUTOR Convicted of administrative misconduct 11th Class: applies to Brazilian legislation in the case of Brazilian hired to work in Brazil and moved to Foreign Company telemarketing is processed in 30 million Clinical Radiology of Manaus is ordered to regularize journey
Former flight case dj files. fevereiro 2014 (354) janeiro 2014 (426) dezembro 2013 (363) novembro 2013 (627) outubro 2013 (845) setembro 2013 (744) agosto flight case dj 2013 (645) julho 2013 (549) junho 2013 (392) maio 2013 (429) abril 2013 (446) março 2013 (583) fevereiro 2013 (488) janeiro 2013 (413) dezembro 2012 (341) novembro 2012 (425) outubro 2012 (480) setembro 2012 (407) agosto 2012 (385) julho 2012 (255) junho 2012 (170) maio 2012 (186) abril 2012 (136) March 2012 (17
The Third Chamber of the Superior Labor Court reformed, partly arising from the decision of the 2nd Region TRT that applying Precedent 338/TST hosted the journey described in the initial and ordered the defendant, Emplal Plastic Packaging Ltda., Payable to driver Truck overtime and additional night pleaded. For the Panel, the journey described by the driver - who claimed to work from 6am until 4pm the next day with only an hour break in 15 days of the month - "was not reasonable and believable" because it would have only 2 hours range for 22 consecutive hours of work for 15 days a month.
The driver claimed in the labor complaint, who worked under the 6X1 (six working days for rest), from 8 to 23 hours, with 60 minutes of interval for rest and food. On half days, however, was on travel and meet day from early morning to dawn the next day, and still work half days off and on all holidays without receiving overtime. In his defense, Emplal flight case dj submitted timecards and stated that all overtime was paid.
The trial court upheld the journey indicated by the driver and granted all the extra hours and the extra night ensuing. The company appealed to the Regional Labor Court of the 2nd Region (SP), which upheld the sentence. The Regional relied, inter alia, the testimony of representative Emplal, concluding that the times truly worked was not annotated correctly, as alleged in the defense and to concentrate fictitious confession provided in Precedent 338 of the Superior Labor.
In resorting to the TST, the company defended the validity of attached to the process, not marked "British time", timecards and held that the journey of 22 hours indicated the driver flight case dj was "humanly impossible" to be fulfilled.
In his opinion, the Minister Maurice Godinho Delgado emphasized that, due to the legal obligation to record the workload at any employer who has more than ten employees (Art. 74, 2 of the CLT), jurisprudence walked towards that failure to submit the timecards results in the reversal of the burden of proof and, generally, the presumption of veracity working hours stated by the complainant, provided that it has not produced evidence to the contrary (Precedent 338/TST).
However, it is implicit, of course, that even with a fictitious confession, it can not achieve improbable, unreasonable and manifestly artificial result. The Rapporteur stressed that in the present case, the automatic solution flight case dj applied by common instances was not consistent with the principle of reasonableness, which should guide all judicial activity, and the likelihood that should also guide the decisions of the judicial authorities, and hurting the constitutional principles of justice and security (Preamble, Article 3, I.. article 5, / caput / all CF/88.).
According to the Rapporteur and 3rd Class, all these principles governing the existence and rationale of the judiciary and any dynamics of the lawsuit - which are not effectively vehicle unjust enrichment.
For the 3rd Class, the fictitious confession has no absolute value, may not produce results incompatible with rationality, the likelihood and the dynamics of real life. With the partial reform flight case dj of the decision, applying the aforementioned fictitious confession in Ordinary Instance flight case dj remained deferral of overtime and night shift, but limited to a shift 8h to 23h, also indicated in the application. (Dirceu Arcoverde)
No comments yet. No trackbacks yet.
Google searches search by:
Topics Previous Foundation to pay R $ 200 thousand for collective damages TRAINEE THE PROSECUTOR Convicted of administrative misconduct 11th Class: applies to Brazilian legislation in the case of Brazilian hired to work in Brazil and moved to Foreign Company telemarketing is processed in 30 million Clinical Radiology of Manaus is ordered to regularize journey
Former flight case dj files. fevereiro 2014 (354) janeiro 2014 (426) dezembro 2013 (363) novembro 2013 (627) outubro 2013 (845) setembro 2013 (744) agosto flight case dj 2013 (645) julho 2013 (549) junho 2013 (392) maio 2013 (429) abril 2013 (446) março 2013 (583) fevereiro 2013 (488) janeiro 2013 (413) dezembro 2012 (341) novembro 2012 (425) outubro 2012 (480) setembro 2012 (407) agosto 2012 (385) julho 2012 (255) junho 2012 (170) maio 2012 (186) abril 2012 (136) March 2012 (17
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