Luara Zanfolin Frasson de Rezende
Lawyer at Marcos Martins Advogados
The 3rd Panel of the Regional Labor Court of the 3rd Region (TRT 3) unanimously upheld the conviction of a company to pay overtime to a worker who worked outside the company because it had been proven that he controlled his working hours via WhatsApp.
The former employee filed a lawsuit for overtime pay, among other claims, alleging that the company controlled his working hours via WhatsApp, emails and phone calls.
The company defended itself on the grounds that the employee held a position of trust and was also engaged in an activity incompatible with the control of working hours, as it was external, a condition which would prevent the presentation of time cards in the case.
The court of first instance upheld the lawsuit, on the grounds that the work was external, but fully compatible with the company’s control of working hours, and that it therefore had the burden of proving the working hours actually worked, which was not met by the failure to present the time cards.
This decision was upheld by the TRT of the 3rd Region, on the grounds that “by invoking the exception provided for in article 62, I of the CLT, on the grounds thatthe plaintiff’s working hours were essentially external, with no possibility of control, the defendant assumed the burden of proof”, in other words, it would need to prove through witnesses that there was no control of the working hours practiced, which did not occur in this case, given the testimony of the witnesses who took part in the pre-trial hearing.
The rapporteur of the decision, Judge Milton Vasques Thibau de Almeida, also made it clear that work carried out externally, in itself, does not exclude the overtime regime, and that it is necessary to effectively demonstrate the impossibility of supervision, due to the way in which the services were provided, which did not occur in the specific case.
This understanding shows that some actions by companies, even if they are supposedly supported by the law, can be disregarded by the courts if it is shown that the facts were different.
It is therefore highly recommended that companies invest in quality legal advice to bring their cases into line with the law, which Marcos Martins Advogados is able and prepared to offer.
