Lack of FGTS payment causes indirect termination, TST decides
The failure to collect deposits from the Service Time Guarantee Fund (FGTS) is a serious misconduct on the part of the employer and gives rise to indirect termination, that is, the breach of the contract with the payment, by the company, of the severance pay due. in the case of unjustified dismissal. reproduction The driver alleged that his former employer committed a series of irregularities This understanding was adopted by the th Panel of the Superior Labor Court when recognizing the indirect termination of the contract of a driver at Kings Governança de Serviços, in São Paulo, resulting from the failure to pay FGTS for nine months. In the labor complaint, the driver alleged that the company had committed several serious offenses, such as failure to pay FGTS, failure to grant an intra-work break and failure to pay meal vouchers. He therefore requested the indirect termination of the contract (equivalent to the employer's just cause) as of //, the last day he had worked, with receipt of all due installments.The company, in its defense, claimed that Greece Phone Number the employee was fired for just cause, for job abandonment, on // This allegation, however, was discarded by the first degree court, which noted that its characterization requires the employee's intention not to return to work and the unjustified and prolonged absence for more than days. According to the ruling, the labor complaint was filed on // and the company was notified three days later. Furthermore, documents show that the driver sent a telegram, also received on /, informing that he had filed the action and that he would not appear at the company until the final decision, as provided for by paragraph of article of the CLT. With this, he recognized the indirect termination, given the proof of the absence of FGTS deposits. The Regional Labor Court of the nd Region (Greater São Paulo and coastal São Paulo), however, reversed the sentence.
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According to the decision, the "employer's just cause" is characterized by the company's attitudes that make the employment relationship unsustainable, and, for this, it is necessary that the proof of illicit acts be conclusive, "demonstrating the dishonest, amoral or offensive attitude " from the employer. For the regional court, default on FGTS deposits, in itself, does not justify indirect termination. "This is a sum that becomes available to the employee only at the time of contractual termination, and does not have the power to make the employment relationship intolerable", he concluded, by excluding from the conviction the payment of the indemnified prior notice and the fine of % on the FGTS balance and the release of receipts for withdrawing the fund, among others. This decision was reversed by the th Panel of the TST. The rapporteur of the driver's review appeal, Minister Kátia Arruda, noted that, according to the court's jurisprudence, failure to comply with an obligation essential to employment, such as not depositing the FGTS, justifies indirect termination.
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