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
APÓLICE DE SEGURO GARANTIA COM VIGÊNCIA DE CINCO ANOS NÃO É ACEITA EM SUBSTITUIÇÃO AO DEPÓSITO RECURSALUncategorized
Ensaio sobre a Federação Brasileira.Uncategorized- 2ª TURMA DO TRT/RJ DECIDE: REFORMA TRABALHISTA NÃO PODE RETROAGIR PARA ATINGIR FATO CONSUMADOUncategorized
Princípio da Reserva de PlenárioUncategorized
Erro da parte ao registrar recurso no PJe não impede acesso à Justiça – Notícias do TST!Uncategorized
Curso de Direito Constitucional
Curso de Direito do TrabalhoTeoria,Videoaulas 
Tribunal de Justiça do RJ. Questões Comentadas de TGP (3h)Teoria,Videoaulas 
Tribunal de Justiça do RJ. Questões Comentadas de Direito Constitucional (3h)Teoria,Videoaulas 
Reforma Trabalhista (20 Horas)Apostilas,Questões,Teoria,Videoaulas
Decisão perfeita!
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