It is up to the employer to prove job abandonment

The 9th Chamber of the TRT miner , following the vote of Judge John Bosco Lara Pinto , upheld the sentence which reversed the cause applied to a helper electrician accused of leaving employment . It is the employer failed to prove the thesis of neglect, presenting evidence weak and inconsistent. In this context, the appeal against the decision of Grade 1 was rejected.



Abandonment of employment, to be severe penalty occasioning the breach of contract for just cause , should be fully demonstrated in the records by the employer , mainly because it actually detracts from the right perception of severance , and contrary to the principle of continuity of relationship employment , the rapporteur explained the vote. The principle mentioned labor contract provides that the work tends to persist over time , requiring a formal expression of will for its closure .



According to the magistrate , to confirm the abandonment of employment, other than a willingness not to return to work, it is necessary that the employee has 30 days of unexcused absences in the service . The employer must notify you of the intention to apply the maximum penalty . In case, these requirements were not fulfilled , as the company just presented documents proving the sending correspondence to the complainant , without revealing their contents.



For the rapporteur , there was no proof that the employee has been advised of the intention of the employer to conduct his discharge for cause , which was essential , as well as the employee 's intention to leave the job , obligation of the employer. At most , a witness told the claimant was dismissed by charge , which reinforced the understanding as to dismissal without cause .



Thus , the Panel upheld the decision of the judges who condemned the company for electrical services and buildings to pay the balance of helper electrician salary, notice indemnified , 13th salary , vacation third , 40% fine on FGTS and also fine article 477 , paragraph 8 ° of CLT .



( 0001315-85.2012.5.03.0082 RO )



Source : Regional Labor Court of the 3rd Region