Dicas

terça-feira, 3 de julho de 2012
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Qual o prazo para quitar a rescisão trabalhista?

Por Geovana Marques | Colunistas, Defenda-se, Destaques Thumbs

A advogada Geovana Machado Marques fala da maneira correta para fazer os acertos e não precisar cumprir penalidades

Os temas trabalhistas, recorrentes em minha coluna no Dicas, geralmente são abordados pelo viés dos direitos do empregado. Nesta oportunidade, visamos igualmente esclarecer alguns pontos a quem é empregador sobre o prazo para realizar o acerto trabalhista sem ser atingido por penalidade da lei. E você, que é empregado, também pode saber se sua rescisão foi realizada corretamente, ou se pode ser indenizado em caso de atraso em seu pagamento.

Pois bem. Dando início às considerações sobre o tema, uma vez cessado o contrato de emprego, a CLT determina um prazo razoável para a quitação da rescisão trabalhista. O fundamento de tal determinação é simples: as verbas trabalhistas possuem caráter alimentar e, em assim sendo, a demora em seu pagamento enseja prejuízos ao atendimento das necessidades essenciais do indivíduo e de sua família.

Por outro lado, o empregador que não observa os prazos designados pela lei, sofre punição pedagógica, consubstanciada pela multa do artigo 477, da CLT, que corresponde a valor equivalente ao do salário percebido pelo obreiro.

Vale então, atentar-se para os limites temporais entabulados no aludido artigo:

Se o aviso prévio foi indenizado, o prazo é de até 10 (dez) dias corridos, devendo a contagem ser realizada de maneira a excluir o dia da notificação da dispensa e incluir o dia do vencimento.

O prazo é de até 1 (dia) útil após a dispensa, se o aviso foi cumprido ou trabalhado.

Nos contratos por prazo determinado, o lapso temporal para pagamento também é de 1 (dia)

Por cautela, os acertos devem ser realizados no sindicato respectivo da categoria, dentro do prazo estipulado, ficando desde já cientificado o empregado dos termos rescisórios, ocasião em que, havendo a homologação da rescisão, o obreiro sai com o pagamento em mãos.

Pode ocorrer, na prática, de não ser possível a homologação imediata no sindicato, não obstante tenha o empregador feito o pagamento dentro da data aprazada. Sobre este aspecto, vale destacar que a mais recente decisão do TST (Processo: E-ED-RR-743-04.2010.5.03.0114)* manteve a não incidência da multa do artigo 477 quando a homologação da rescisão ocorre posteriormente ao tempo estipulado. Assim, a observação do prazo contido na norma, se dá efetivamente quanto ao pagamento das verbas rescisórias, eis que não há previsão legal sobre o atraso na homologação.

Sobre as condições do referido pagamento ainda não submetido à homologação sindical, não raro, tem sua realização concretizada mediante depósito em conta-corrente, transferência bancária ou cheque. São meios idôneos de pagamento, que se, muito embora forem feitos dentro do lapso informado pela lei trabalhista, podem não isentar o empregador da multa prevista numa futura ação trabalhista. Isto ocorre, segundo o entendimento dos Tribunais, porque nem sempre o empregado é notificado das parcelas que lhe serão adimplidas, não havendo o mero pagamento o condão de liberação da multa.

Assim, uma vez optando por estas modalidades de pagamento, deve o empregador realizar notificação prévia ao empregado.

No caso específico do pagamento em cheque, há que se atentar para o lapso até a sua compensação. Se esta se der após o prazo estabelecido, haverá incidência da multa.

Muito importante notar que se foi o próprio empregado quem deu causa ao atraso, não se aplica a penalidade imposta no art. 477.

*Fonte: Tribunal Superior do Trabalho.

Geovana Machado Marques é advogada, graduada em Direito pela Universidade Federal de Goiás. Atua na área Trabalhista e Cível, com ênfase em Recuperação de Crédito judicial e extrajudicialmente
E-mail: geovana@marquesassociados.adv.br

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