This article aims to address the use of the cell phone on the part of the worker and the possible characterisation of the warning, if the developer receives call from company out of your workday to provide extraordinary labor.
Keywords: cell phone at elaineqho.com. Characterization. Report.
- 1. INTRODUCTION
Many employers have doubt as to the caracterzação of the guard, often paying wrongly hours on standby or failing to pay when such horais should be paid.
The biggest question is regarding the use of cell phones, post that, although, in fact, the developer is not on standby for a possible extraordinary labor, due to the ease of communication exisitente these days, the employer can contact your developer at any time and call it the service when necessary.
Furthermore, such a fact does not generate doubt only to the employer, but also to the employees, that is fully visible, when faced with hundreds of claims in the face of employers to resolve this question.
In this sense, this article aims to identify whether the use of the mobile device itself generates the right to receipt of the warning by the developer.
- 2. DEVELOPMENT
The guard is defined as the time when the employee becomes available to the employer, awaiting orders in your residence, as provision of article 244, paragraph 2 of the LABOR CODE:
“It is considered” warning “the employee to remain in your own home, at any time the call to the service. Each scale from “standby” will be of a maximum of 24 hours. The “warning”, for all purposes, shall be remunerated at a rate of 1/3 (one-third) of the normal wage.
The above article provides warning for train service, however this article is used by analogy to other employees.
The characterization of the warning, as the article above, when remaining configured the restriction of freedom to come and go, that is, when the same during your interjonada interval, cannot leave home/travel, because you may receive a call from the employer at any time.
This understanding has been suffering changes over time, as modernity, using telematic media, as the example of the mobile device, has been used daily for employers keep in touch with your employees in order to call them to the service when a need arises.
To resolve this issue, the TST formed your understanding through the Scoresheet 428, as follows:
Report. Using intercom device, like BIP, pager or cell phone, by the employee, by itself, does not characterize the warning scheme, since the employee does not remain in your residence waiting for, at any time, call for service.
This understanding is already before the courts, Pacific this because, even though the employee can be fired at any time to work, the use of the telematic device does not compromise your mobility, and need not sit at home waiting for a call from the employer.
Therefore, to set up the scheme remains on standby when the employer must pay these hours at the rate of 1/3 of the normal wage, worker mobility is restricted.
The above understanding, based on the scoresheet 428 of the TST, has been used by the courts, or let’s see:
HOURS OF STANDBY. NO CONFIGURATION. The characterization of the standby assumes the restriction on the freedom of locomotion of the employee, as States the §2 of art. 244 of CLT and the employee remain in your residence at the disposal of the employer for any call. Therefore, proof that the worker spends all the time at the disposal of the company, unable to refuse the attendance in case of convening, as occurs with the railways. In this step, the warning scheme not cell phone usage, because there is no need for the employee to remain in your House waiting for summons of defendant, and can have your time as you see fit. Application of Judicial Guidance paragraph 49 of SDI-1 of the TST, by analogy. (RO 0003188-70.2011.5.12.0029, SECRETARY of the 3rd CLASS, TRT12, LILIA LEONOR ABREU, published in TRTSC/DOE in 17/02/2014)
HOURS OF STANDBY. The guard assumes curtailment in come and go, in performing routine activities, the employee at home, at the disposal of the employer. Scoresheet 428, II, CPC. (RO 00013535420115010061, Second Class, TRT1, Maria Aparecida Coutinho, 04-06-2013)
Report. USE OF THE MOBILE DEVICE. As understanding signed in item I of the scoresheet 428 of this Court,-the use of telematic or computerized instruments provided by the company to the employee, by itself, does not characterize warning-regime. Interlocutory appeal known and bereft. (ARR-77-45.2012.5.04.0521 date of trial: 12/02/2014, Rapporteur: Minister Alberto Luiz Bresciani of Fontan Pereira, 3rd Class, date of publication: DEJT 14/02/2014).
Important to note, that when characterized the restriction of freedom of locomotion of the worker, the additional warning is due, as understanding of the courts who follow colacionados below:
Report. STAY ON DUTY. INDUCTION MEANS EMPLOYER. Proven in the case-file that was part of the routine of the invoke activity the employee after normal hours for emergency repair and that was required answer, it has been shown that the employer used means to induce the employee to remain on duty waiting at any time called, which configures the report. (0000346 RO-43.2012.5.12.0010, SECRETARY of the 3rd CLASS, TRT12, MARIA DE LOURDES LEIRIA, published in TRTSC/DOE in 14/02/2014)
HOURS OF STANDBY. PROVED BY THE CLAIMANT THAT REMAINED AT THE DISPOSAL OF THE CLAIMED, LIVES UP TO THE ADDITIONAL GUARD. SENTENCE IF
MAINTAINS IN ITS TERMS. (RO 0000091-32.2013.5.01.0471, 4th class, TRT1, Rapporteur Tania da Silva Garcia in 11/02/14)
Therefore, the company shall always observe freedom of locomotion of the worker is restricted, in which case the additional warning will be due. If the employee does not have your freedom of locomotion restricted, only receive overtime for the hours when laboradas called out of your labor hours.
- Final considerations
According to understanding of the TST and other courts, hardly a worker provides warning scheme, since, in almost all situations, employees bear intercom devices, which may or may not be provided by the company to attend emergency affecting not called so your freedom of locomotion, which detracts the warning scheme.
Therefore, the additional payment will be due when SP risks effectively there is the restriction of freedom of locomotion, as understanding of the Scoresheet 428 of the c. TST.