CeCapSandes

2ª TURMA DO TRT/RJ DECIDE: REFORMA TRABALHISTA NÃO PODE RETROAGIR PARA ATINGIR FATO CONSUMADO

Notícias do TRT/RJ

“A 2ª Turma do Tribunal Regional do Trabalho da 1ª Região (TRT/RJ) negou provimento a um recurso interposto pela Riotur Empresa de Turismo do Município do Rio de Janeiro S.A., requerendo o indeferimento do pedido de incorporação de gratificação de função ao salário, feito por uma funcionária. No recurso, a Riotur requereu a aplicação da Lei nº 13.467/2017 (chamada Reforma Trabalhista), mas o entendimento do colegiado foi que a lei não pode retroagir para atingir fato já consumado. Os desembargadores seguiram, por unanimidade, o voto do relator do acórdão, desembargador José Antonio Piton.

Na inicial, a trabalhadora alegou que recebeu a gratificação de 1º de junho de 1994 a 25 de janeiro de 2018, quando a empresa municipal a teria suprimido, violando o artigo nº 468 da Consolidação das Leis do Trabalho (CLT). O texto estabelece que só é lícita a alteração das condições dos contratos individuais de trabalho se houver mútuo consentimento e desde que, direta ou indiretamente, não resultem em prejuízos ao empregado, sob pena de nulidade. A empregada também citou o inciso I da Súmula nº 372 do Tribunal Superior do Trabalho (TST), que estabelece a manutenção da remuneração devida pelo exercício de cargo ou função por dez anos ou mais.

Em sua defesa, a empresa requereu a aplicação imediata das alterações trazidas pela Lei nº 13.467/2017. Isso porque foi incluído ao artigo nº 468 da CLT um parágrafo que veta a incorporação de gratificação ao salário independentemente do tempo de exercício. A Riotur alegou que a trabalhadora não teria sofrido redução de seu salário, mas reversão ao cargo efetivo, devido à eleição de um novo prefeito, com outra política de gestão de pessoal.

Na 40ª Vara do Trabalho do Rio de Janeiro, onde o caso foi julgado inicialmente, o pedido da trabalhadora foi considerado procedente. O juízo entendeu que, quando da entrada em vigor da Lei nº 13.467/2017, a empregada já havia incorporado a gratificação de função, devendo ser respeitado o direito adquirido. A empresa recorreu da decisão.

Ao analisar o processo, o relator do acórdão verificou que a empresa pública não contestou a afirmação da trabalhadora de que a mesma exerceu a função de confiança de modo contínuo e ininterrupto por período superior a 23 anos, comprovado pelos contracheques acostados aos autos. O magistrado também observou que a questão já havia sido pacificada pela Súmula nº 372 do TST, que garante ao trabalhador que exerceu função por dez anos ou mais a manutenção do benefício mesmo se revertido para o cargo de origem, em respeito ao princípio da estabilidade financeira.

De acordo com o desembargador relator, a funcionária já havia adquirido o direito a incorporar a gratificação bem antes da entrada em vigor da Reforma Trabalhista.

“O fato de o contrato de trabalho mantido entre as partes continuar em vigor não altera a conclusão do julgado, pois a Lei nº 13.467/17 não pode retroagir para atingir fato já consumado (…). No mais, entendo que a reclamada não comprovou o justo motivo da dispensa. Com efeito, a alegação de que houve ‘troca’ de chefe do Poder Executivo Municipal (…) não constitui motivo capaz de infirmar o direito à incorporação”, concluiu ele.

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

PROCESSO Nº: 0100183.74.2018.5.01.0040”

Abaixo, comentários do prof. Fagner Sandes:

Com efeito, prezados leitores, estamos diante da observância estrita do princípio constitucional da segurança jurídica, haja vista o que dispõem os artigos 5º, XXXVI da CF e 6º da LINDB, de modo que afirmo, mais uma vez, que quando a Lei 13.467/17 entrou em vigor (11.11.17), ela só teve o condão de alterar, no que toca sua aplicação, regras para os contratos vindouros e não para os antigos, que seguem regidos pelas regras vigentes à época de sua celebração.

Desta feita, no meu sentir, a decisão está bem  fundamentada com os dogmas constitucionais.

Grande abraço,

Fagner Sandes – CEO CeCapSandes

agosto 12, 2019

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