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Notícias do TRT/RJ: VIÚVA DE TRABALHADOR NÃO CONSEGUE INTERROMPER PRESCRIÇÃO DE AÇÃO TRABALHISTA

A 4ª Turma do Tribunal Regional do Trabalho da 1ª Região (TRT/RJ) negou provimento ao recurso da esposa de um ex-pedreiro da Socima Sociedade Civil Mandala, empresa especializada na administração de condomínios. O trabalhador faleceu no local de trabalho. A viúva recorreu da sentença que considerou prescrito o prazo para ajuizamento de uma terceira reclamação trabalhista contra a empresa. O colegiado seguiu, por unanimidade, o voto do relator do acórdão, desembargador Alexandre Teixeira de Freitas Bastos Cunha.

A viúva relatou que o marido trabalhou na empresa de 1º de outubro de 2001 a 30 de abril de 2014, quando foi vítima de um infarto agudo do miocárdio, vindo a falecer no local de trabalho. Com a extinção de duas ações trabalhistas movidas anteriormente, em 2014 e 2015, ingressou com uma terceira reclamação, datada de 2017. Nesta última, requereu pagamento de indenização por dano moral, alegando que o marido teria sido vítima de negligência durante o atendimento.

As duas ações anteriores tramitaram na 13ª Vara do Trabalho do Rio de Janeiro. Segundo representantes da empresa, a viúva teria desistido da primeira reclamação trabalhista, acarretando em seu arquivamento. A segunda ação também foi arquivada, mas desta vez pela ausência injustificada da interessada à audiência.

Na 13º Vara do Trabalho do Rio de Janeiro, onde também tramitou a terceira ação, foi aplicado, subsidiariamente, o artigo 202 do Código Civil, que determina a extinção em virtude da inércia do titular. A lei também prevê que só é possível interromper a prescrição uma única vez, razão pela qual a nova reclamação, datada de 2017 e também prescrita, não poderia ser interrompida. A sentença destacou que, mesmo que ela fosse tempestiva, não haveria nada que comprovasse que a morte do pedreiro foi causada pela atividade desenvolvida na empresa.

Ao analisar o recurso, o relator do acórdão observou que, conforme o inciso XXIX, do artigo 7º da Constituição Federal, o direito de ação prescreveu em dois anos, contados do falecimento do empregado e, portanto, da extinção do contrato. O magistrado também lembrou que a documentação anexada aos autos comprova que a reclamação trabalhista, ajuizada em 6 de setembro de 2014, interrompeu o prazo prescricional previsto no Código Civil. Ele teria voltado a correr a partir do último ato praticado, a homologação de desistência da ação pela viúva, em 26 de maio de 2015.

“Dessa forma, considerando que a ação sub examine (sob exame) foi proposta em 30 de outubro de 2017, tem-se que já decorrido o prazo bienal previsto na Carta Magna, quando desse ajuizamento. Nesses termos, mantenho incólume a sentença de origem”, decidiu o relator do acórdão, mantendo a sentença de primeiro grau.

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

 

PROCESSO Nº: 0101752.74.2017.5.01.0031

julho 8, 2019

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