A 8ª Câmara do TRT-15 negou provimento a recurso de um trabalhador inconformado com a sentença do juízo da Vara do Trabalho de Sumaré, que manteve a justa causa aplicada ao reclamante. Em seu recurso, ele insistiu na tese de que a justa causa, ocorrida em novembro de 2011, está “eivada de irregularidades porque não foi dela comunicado e porque a homologação ocorreu apenas em 6 de março de 2012”. Por isso, entende que teria ocorrido o “perdão tácito em razão da falta de imediatidade”. Ele ainda pediu, por tudo isso, indenização por danos morais, uma vez que teria saído da empresa “com a fama de ‘mentiroso’, difamado no meio de seus colegas de trabalho”, uma vez que a empresa teria divulgado informações de que ele havia emitido atestados falsos. Além desses pedidos, o reclamante pediu ainda verbas rescisórias, liberação de FGTS e de guias do seguro-desemprego, bem como adicional de insalubridade em grau máximo e multa do artigo 477 da CLT.
O relator do acórdão, desembargador Luiz Roberto Nunes, não concordou com a tese do trabalhador e afirmou que, “ao contrário do alegado, o autor foi comunicado de sua dispensa motivada por meio do documento, por ele próprio juntado (‘improbidade e fraude da entrega de atestado médico falsificado e adulterado’), sendo que os documentos expedidos pela Prefeitura Municipal de Sumaré (Pronto Socorro Municipal) confirmam que o atestado apresentado pelo autor é falso”. O acórdão negou também a falta de imediatidade ou o perdão tácito, “uma vez que apenas em novembro/2011 a empregadora pôde confirmar a falsidade do atestado médico entregue em julho/2011, ocorrendo imediata dispensa após o retorno do reclamante de suas férias”.
O acórdão afirmou também, com relação à indenização por danos morais, que, uma vez comprovado que os atestados eram falsos, não se verificaria nenhum ilícito da parte da empresa em divulgar informações sobre o ocorrido.
O colegiado negou ainda o pedido de insalubridade em grau máximo ao invés de médio (definida pelo laudo do perito), feito pelo reclamante sob a alegação de que a empresa não oferecia EPIs. Segundo a decisão colegiada, a argumentação recursal “beira a litigância de má-fé, haja vista que em depoimento o autor admitiu ‘que trabalhava utilizando máscara, protetor auricular, óculos, botina e luvas’”.
Por fim, quanto à tese de ser devida a multa prevista no § 8º do artigo 477 da CLT porque havia verba rescisória (participação nos lucros e resultados) a receber, e pelo fato de a homologação ter acontecido a destempo, o colegiado chamou de “inovatório” o argumento do trabalhador, “o que inviabiliza a apreciação por esta instância em respeito ao artigo 294 do CPC vigente à época do ajuizamento (artigo 329 do NCPC), sob pena de ofensa aos princípios do contraditório e da ampla defesa”. Além disso, o acórdão salientou também que, conforme termo de rescisão de contrato de trabalho juntado aos autos, “inexistia valor rescisório a ser saldado pela reclamada em razão da justa causa aplicada; pelo mesmo motivo, não haveria que se falar em tal multa pela não baixa da CTPS e pela não entrega de guias para levantamento do FGTS ou para recebimento do seguro-desemprego, haja vista que, como norma punitiva, sua interpretação deve ser restritiva”.
Processo: 0001398-45.2012.5.15.0122.
Fonte: Tribunal Regional do Trabalho da 15ª Região-Campinas/SP.
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