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TRT/RJ: SEM TER LIBERDADE TOLHIDA, EMPREGADO PERDE ADICIONAL DE SOBREAVISO

O uso de telefone celular não autoriza pagamento de adicional de sobreaviso quando o empregado não está à disposição do empregador, sem ter o seu direito de ir e vir cerceado. Esse foi o entendimento da 4ª Turma do Tribunal Regional do Trabalho da 1ª Região (TRT/RJ) no julgamento de um caso envolvendo um empregado da empresa Claro S/A.

O funcionário acionou a Justiça do Trabalho alegando que era submetido a uma escala de sobreaviso para os reparos na rede de telefonia da empregadora, que poderiam ser feitos a qualquer hora da madrugada. Ele relatou que, quando integrava a escala de sobreaviso, geralmente ficava em casa, mas admitiu que isso não o impedia de que fosse a outro local, como uma festa de aniversário ou a um casamento. O juízo de origem deferiu o pagamento de adicional de sobreaviso, o que levou a empresa a recorrer da decisão.

No segundo grau, o desembargador Luiz Alfredo Mafra Lino pontuou que o próprio trabalhador confessou, sem saber, que jamais esteve em regime de sobreaviso. Para elaborar seu voto, o magistrado fundamentou-se na súmula nº 428 do Tribunal Superior do Trabalho (TST): “SOBREAVISO. APLICAÇÃO ANALÓGICA DO ART. 244, § 2º DA CLT. O uso de instrumentos telemáticos ou informatizados fornecidos pela empresa ao empregado, por si só, não caracteriza o regime de sobreaviso. II – Considera-se em sobreaviso o empregado que, à distância e submetido a controle patronal por instrumentos telemáticos ou informatizados, permanecer em regime de plantão ou equivalente, aguardando a qualquer momento o chamado para o serviço durante o período de descanso”.

Em seu voto, o relator assinalou que “o adicional de sobreaviso é cabível apenas quando é tolhida a liberdade do trabalhador em seu horário de descanso e isso, conforme palavras do próprio reclamante (empregado), não ocorreu”. Ao acompanhar o voto do relator, a 4ª Turma reformou a decisão do primeiro grau.

Nas decisões proferidas pela Justiça do Trabalho, são admissíveis os recursos enumerados no art. 893 da CLT.

PROCESSO: 0105600-71.2009.5.01.0024 – RO

Fonte: Site do TRT/RJ

fevereiro 17, 2019

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