Empregado tem direito à rescisão indireta se chefe usa maconha no trabalho

Clipadão

hempadao 22 março, 2017

Chefe que fuma maconha no ambiente de trabalho não preza pela saúde dos funcionários. Dessa forma, ele comete falta grave prevista na alínea “d” do artigo 483 da Consolidação das Leis do Trabalho.

Fonte: Consultor Jurídico

Com base nesse entendimento, a 1ª Turma do Tribunal Superior do Trabalho reconheceu a rescisão indireta do contrato de trabalho de uma supervisora de vendas e condenou a empresa ao pagamento de R$ 3 mil de indenização por dano moral, em decorrência da conduta de um dos sócios que usava maconha em meio aos empregados.

Na reclamação trabalhista, a supervisora alegou diversos motivos para a rescisão indireta, como o não pagamento de comissões e retenção da carteira de trabalho, mas, segundo ela, o estopim foi o comportamento do proprietário, que usava a droga inclusive em reuniões com a equipe. Além de não concordar com o uso, ela sustentou que se tornava usuária passiva contra a sua vontade, o que a levou a pedir dispensa.

O juízo de primeira instância havia deferido os pedidos da empregada, mas o Tribunal Regional do Trabalho da 9ª Região (PR) inocentou o empregador da condenação. A corte se baseou no entendimento de que, apesar de testemunha confirmar a sua versão, não havia qualquer prova de que isso tivesse causado algum prejuízo à trabalhadora.

O relator do recurso da funcionária ao TST, ministro Hugo Carlos Scheuermann, observou que, mesmo entendendo que é obrigação da empresa zelar por um ambiente saudável e que a demonstração do uso de entorpecentes no ambiente de trabalho seria fato grave suficiente para a rescisão indireta, o regional reformou a sentença por não verificar vício de consentimento no pedido de dispensa.

Mas, segundo o relator, a discussão não diz respeito ao suposto vício de consentimento, e sim ao direito da trabalhadora de considerar rescindido o vínculo de emprego quando o empregador não cumpre as obrigações contratuais.

No caso, a falta de cuidado com o ambiente do trabalho, a saúde, a higiene e a segurança dos seus trabalhadores caracteriza a falta grave prevista na alínea “d” do artigo 483 da CLT. O artigo 157 e a Convenção 155 da Organização Internacional do Trabalho, por sua vez, dispõem que as obrigações decorrentes do contrato devem ser cumpridas na integralidade.

Para Scheuermann, uma vez provada a omissão da empresa em relação à conduta do sócio, o dano moral dispensa comprovação, devendo a empresa pagar a indenização, nos termos do artigo 5º, inciso X, da Constituição Federal. O ministro assinalou que a empregada também foi acusada de furto sem prova. Por unanimidade, a turma restabeleceu a sentença.

Sem punição
A Corte Constitucional da Colômbia decidiu recentemente que um trabalhador não pode ser punido por seu empregador por conta do consumo de álcool ou entorpecentes. O entendimento é que o empregado só pode receber algum tipo de punição se o uso de drogas atrapalhar de maneira direta seu trabalho — ou se colocar em risco outras pessoas.

A corte, ao ser questionada a respeito da constitucionalidade do veto ao uso de drogas em serviço, disse que o estado tem o dever de coibir o uso de entorpecentes em determinadas atividades, mas que a punição no âmbito do Direito do Trabalho é mais restrita. Caso contrário, poderia afetar o direito a intimidade do empregado e ultrapassar os limites do poder disciplinar do empregador, ou seja, a relação direta com o trabalho.

Drogas e prisões
A revista eletrônica Consultor Jurídico publicou em fevereiro uma série de reportagens e entrevistas sobre a relação entre a guerra às drogas e a superlotação dos presídios. O especial teve como motivação a onda de rebeliões e massacres em presídios no início de 2017.

Os textos do especial, que podem ser encontrados neste link, apontam que a repressão às drogas não reduziu o uso e comércio delas, apenas gerou encarceramento em massa e mais violência. Nesse combate, os acusados têm seu direito de defesa rebaixado, e o depoimento dos policiais, muitas vezes, é o que embasa as condenações, conforme demonstram estudos. Com informações da Assessoria de Imprensa do TST.



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