Geolocation is increasingly being used as a means of proof, to confirm the movement of the worker and the compatibility between the clock-in and the employee’s location at the same moment, in comparison to the working hours controls.
Geolocation is a technology that makes it possible to track the location of a mobile device, such as a smartphone, through the use of GPS signals or other similar technologies. It is precisely for this reason that the Labor Courts have admitted the production of digital evidence to demonstrate the compatibility between the time clock entries and the location of the geolocator at that time.
With this understanding, the 2nd Panel of the Regional Labor Court of the 1st Region (RJ) recently authorized the production of digital geolocation evidence requested by the company to verify the working hours of a bank employee, in order to demonstrate the reliability of the time controls and the absence of due hours. The court declared the case null and void and ordered the case to be sent back to the lower court to reopen the hearing, on the grounds that by refusing to allow the digital evidence to be produced, the lower court judge had curtailed the bank’s right to defense.
With this understanding, the TRT of the 1st Region (Rio de Janeiro) allowed the production of digital evidence, through judicial authorization, allowing access to geolocation data, or the possibility of requesting Google, Facebook, Twitter and Apple to send the employee’s geolocation.
The main impact of this decision, which is also a trend in the TRT of the 15th Region, concerns the advance of electronic media and the application of technology in the Judiciary. The precedent is positive for the courts and for society in general, as it speeds up the process, facilitates evidentiary dilation and reduces the legal uncertainty previously generated by other means of proof more commonly used, such as testimonial evidence.
Through digital evidence, companies can demonstrate whether or not the employee remains on company premises after the end of working hours, for example, thus defending the validity of time cards. Technical evidence can be essential to support the employer’s defense when the time cards are rejected.
It is important to note, however, that digital evidence has not come to exclude other means of proof. According to the CLT, the legal obligation to control working hours is the employer’s – at least for those with more than 20 employees. When the employer fails to exercise effective and suitable control over working hours, case law has a satisfactory formula for resolving the issue: it presumes the veracity of the working hours reported by the worker.
According to art. 369 of the CPC, the parties have the right to use all legal resources to prove the reality of the facts on which the claim or defense is based and to influence the judge’s conviction.
However, there are those who believe that it would only be plausible to use this means of proof if there was no other way of proving what was alleged (such as recording cameras in the establishment, for example).
The understanding on the subject cannot be considered settled because there is no TST ruling on the subject.
