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TRT/RJ: POR NÃO CUMPRIR COTA, EMPRESA É OBRIGADA A REINTEGRAR TRABALHADOR COM DEFICIÊNCIA

A 3ª Turma do Tribunal Regional do Trabalho da 1ª Região (TRT/RJ) deu provimento ao recurso de um ex-técnico operador fabril da Companhia de Bebidas das Américas (Ambev) portador de deficiência, que – de acordo com seu relato na inicial – foi demitido durante a licença médica. O trabalhador pleiteou a nulidade da dispensa, com reintegração ao emprego e consequente ressarcimento dos valores devidos pelo tempo de afastamento, além de indenização por danos morais. O colegiado seguiu, por unanimidade, o voto do relator do acórdão, desembargador Rildo Albuquerque Mousinho de Brito, que determinou a reintegração do profissional uma vez que a empresa não estava cumprindo a cota destinada a tais pessoas.

Admitido em 7 de novembro de 2005, o trabalhador ficou sob licença pelo Instituto Nacional do Seguro Social (INSS) em períodos distintos. Após um de seus afastamentos, entre os meses de dezembro de 2006 e 2015, foi reabilitado para exercer funções compatíveis com suas limitações, dentro da cota de pessoas portadoras de deficiência da empresa. Ao voltar de férias, em junho de 2016, foi considerado novamente incapacitado, mas teve o benefício recusado pelo INSS. No dia 25 de outubro, após um surto psiquiátrico no trabalho, foi novamente afastado pela Previdência Social, retornando às funções em 2 de abril de 2017. Finalmente, em 15 de maio, seu supervisor teria determinado que aguardasse em casa para ser chamado para o serviço. No entanto, dois dias depois, foi dispensado imotivadamente. O empregado alega que sua dispensa foi discriminatória, porque se encontrava em tratamento psiquiátrico e fisioterápico.

A Ambev se defendeu destacando que a doença alegada pelo trabalhador não mantinha qualquer relação com suas atividades e que, no momento da dispensa, não estaria gozando de qualquer benefício por ser considerado apto ao trabalho. Além disso, a demissão teria decorrido da redução do quadro de empregados devido à crise econômica sofrida pelo país. Alegou também que na petição inicial não havia propriamente um pedido de reconhecimento de doença ocupacional do técnico, mas sim de reintegração ante a suposta estabilidade provisória a que teria direito. Os representantes da companhia frisaram que a doença não foi reconhecida pelo INSS, e que o empregado não estava afastado por acidente de trabalho e tampouco estaria recebendo benefício nesse sentido.

Na 49ª Vara do Trabalho do Rio de Janeiro, onde o caso foi julgado inicialmente, o juízo considerou incontroverso que a companhia de bebidas não tinha ciência dos problemas de ordem psiquiátrica do empregado, pois os afastamentos previdenciários provinham de problemas físicos, sequelas decorrentes de poliomielite. Também foi constatado que, embora o profissional tenha alegado o acometimento de um surto psicótico no trabalho, o que ocorreu na verdade foi um descontentamento, que gerou perda de controle, causado por nervosismo e impaciência. O próprio profissional disse em depoimento que, ao ser submetido a exame médico que o considerou apto à dispensa, não apresentou mais nenhum sintoma de ordem psiquiátrica. Com isso, o primeiro grau confirmou o desligamento, alegando não haver nenhum vício que pudesse comprometê-lo.

Ao analisar o recurso, o relator do acórdão concordou com o juízo de origem no sentido de não haver prova do suposto surto psicótico. Entretanto, quanto à ilegalidade da dispensa, julgou que assistia razão ao técnico em seu pedido de reintegração, por ser pessoa portadora de deficiência, reabilitada pelo INSS e, portanto, deveria ser inserido na cota mínima de 5% de vagas reservadas, prevista na Lei 8.213/91. Muito embora a empresa tenha atendido a exigência legal de contratar um substituto também com deficiência física, verificou-se em relatório apresentado pela Secretaria de Inspeção do Ministério do Trabalho que a Ambev tinha 791 empregados mantidos na cota, quando deveria ter na verdade 934, para garantir o percentual mínimo exigido pela legislação.

Diante dessas informações, o relator do acórdão reformou a sentença de primeiro grau, declarando a nulidade da dispensa, com pagamento de salários e vantagens remuneratórias do período. “Concedo também indenização por danos morais, que fixo em R$ 5 mil, por conta do quadro de ilegalidade da dispensa, em clara transgressão ao princípio da dignidade da pessoa humana (…) e que causou transtornos e constrangimento ao trabalhador”, decidiu, deferindo reembolso das despesas médicas comprovadas e antecipação de tutela quanto à reintegração ao emprego, tendo em vista os danos que o afastamento do serviço causaram ao empregado.

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

PROCESSO Nº: 0101832-81.2017.5.01.0049

Notícia extraída do site do TRT/RJ dia 11.04.2019

abril 11, 2019

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