Prescription of labor action is not worth for administrative process, says TST
March 20, 2018
The rule on prescription in labor action should not be applied in an administrative matter. With this understanding, the 4th class of the Superior Court of Labor removed the biennial prescription in action of administrative improbity whereby the Brazilian company of Postal and Telegraph (ECT) requires also compensation for the damage caused by the Act practiced In the course of employment relationship.
The action was filed on June 30, 2011 by ECT against an ex-employee dismissed for just cause on June 13, 2008, after an administrative process that found the practice of an act of administrative improbity by appropriation of R $16000. The judgment of the first instance declared the full prescription, with the understanding that the claim of reimbursement originates in the extinct employment contract and therefore would be subject to the statute period of two years of article 7, item XXIX, of the Constitution Federal.
The Regional Labour Court of the 18th region (GO) maintained the sentence, considering that the assimilation of ECT to the public farm (article 12 of Decree-law 509/69) covers only certain prerogatives, such as tax immunity and imprisonment of goods, rents and Services. According to the court, in other respects, the company is governed by the law applicable to private companies, including civil, commercial, labor and tax rights and obligations (article 173, paragraph 1, item II of the Constitution).
In the use of the TST, ECT maintained that, as there was damage to public property, it does not apply to labor prescription, but, yes, the Imprescritibilidade provided for in article 37, paragraph 5, of the Constitution. He also pointed out that the statute of limitations could not have been declared an office without the parties ' request, because article 219, paragraph 5, of the Code of Civil procedure would not apply to the work process.
The rapporteur for the appeal, Minister João Orestes Dalal, understood that the TRT, in keeping the biennial prescription, violated article 37, paragraph 5, of the Constitution. The final part of this article, depending on the incidence of the prescritibilidade principle, imposes, according to Dalal, "in Excepcionalíssimo character, the imprescritibilidade of the actions of reimbursement to the Exchequer as a result of losses arising from illicit of acts of administrative improbity practiced by any agent, public servant or not. "
Still according to the rapporteur, the Law of Administrative improbity (law 8.429/1992) defines public agent as "all who exerts, even if provisionally or without remuneration, by election, appointment, designation, contract or any other form of investiture Or bond, mandate, position, employment or function within the direct, indirect or foundational public administration, or, in any case, of other entities, of a private nature, where there is, in some measure, intervention of the Exchequer "(Articles 1 and 2). With information from the TST Press advisory.
Case RR-852-53.2011.5.18.0053 Source: Conjur