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TST afasta prazo em dias úteis em recurso contra decisão anterior à Reforma Trabalhista

A decisão objeto do recurso foi publicada um dia antes da vigência da nova lei.

A Subseção 1 Especializada em Dissídios Individuais (SDI-1) do Tribunal Superior do Trabalho negou provimento a recurso considerado intempestivo (fora do prazo) porque o empregado que o interpôs fez a contagem do prazo de interposição em dias úteis, e não em dias corridos. Embora a Reforma Trabalhista (Lei 13.467/2017) tenha alterado a contagem do prazo, a decisão objeto do recurso havia sido publicada em 10/11/2017, e as alterações só entraram em vigor no dia seguinte, 11/11/2017.

Indenização

A reclamação trabalhista foi ajuizada por um mecânico da Cristal Pigmentos do Brasil S. A., de Camaçari (BA), com pedido de indenização por danos morais e materiais decorrentes de doença relacionada ao trabalho. A empresa foi condenada ao pagamento das duas reparações, mas a Sexta Turma do TST, em agosto de 2017, excluiu a condenação por danos materiais, uma vez que a doença não resultou em incapacidade para o trabalho. Contra essa decisão o mecânico opôs embargos de declaração, rejeitados pela Turma em novembro.

Intempestividade

O acórdão da Sexta Turma nos embargos de declaração foi divulgado no Diário Eletrônico da Justiça do Trabalho em 9/11/2017 e publicado no dia seguinte. Em 20/11/2017, o empregado opôs novos embargos de declaração. A Turma, no entanto, julgou-os intempestivos por terem sido opostos fora do prazo de cinco dias estabelecido nos artigos 1.023, caput, do Código de Processo Civil e 897-A da CLT. Com o mesmo fundamento, a presidente da Turma, ministra Kátia Magalhães Arruda, negou seguimento aos embargos à SDI-1 interpostos pelo empregado.

Dias úteis

Em agravo à SDI-1, o mecânico sustentou que os embargos de declaração haviam sido opostos dentro do prazo. Como o acórdão havia sido publicação numa sexta-feira, ele defendeu que o prazo de cinco dias começaria a fluir em 13/11, segunda-feira, seria suspenso em 15/11, em razão do feriado da Proclamação da República, e se encerraria em 20/11, data em que foi protocolada a petição. No seu entendimento, a Reforma Trabalhista entrou em vigor em 11/11/2017, antes de iniciar o prazo de cinco dias para interposição do apelo, e, portanto, a contagem deveria ser feita em dias úteis.

Norma vigente

O relator dos embargos, ministro Alberto Bresciani, explicou que a Lei 13.467/2017 passou a prever a contagem dos prazos em dias úteis. Anteriormente à reforma, no entanto, a redação do artigo 775 da CLT estabelecia que os prazos processuais deveriam ser contados “com a exclusão do dia do começo e a inclusão do dia do vencimento, e são contínuos e irreleváveis”. Como o acórdão foi publicado em 10/11, um dia antes da entrada em vigor da nova lei, o prazo teria de seguir essa regra.

“Apesar de as normas de natureza processual terem aplicação imediata em relação aos processos em curso, elas não operam efeito retroativo”, assinalou o relator. “Não havendo nos autos qualquer elemento que indique a suspensão dos prazos processuais, é imperioso concluir que a contagem do prazo de cinco dias contínuos iniciou-se em 10/11/2017, contando-se a partir do primeiro dia útil subsequente à data da publicação, e findando em 17/11/2017”, destacou.

A decisão foi unânime.

Retirado de: http://www.tst.jus.br/

dezembro 20, 2018

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