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[4059006] A 40% fine of the worker's FGTS is not formal notice to be compensated in 2019. The Fifth Chamber of the Superior Labor Court (TST) excluded from the 40% fine on the balance of the FGTS – due in the event of dismissal without just cause – the projection of the previously paid notice. The decision was rendered in the judgment of the appeal of a supermarket, being the subject of a lawsuit brought by a seller.
Fine FGTS
The seller worked at the Joinville (SC) premises for more than two years. According to the case-law of the TST, there was no legal provision to determine the impact of the fine on the previously paid notice. In court, he complained that the company did not deposit in his FGTS account the percentage of salary for the notice period.
In asking for the impact, the terminated employee based his claim on TST Precedent 305, which indicates the payment corresponding to the notice period.
The trial court and the 12th Regional Labor Court (TRT-12) granted the seller's request. For TRT-12, the notice period, even if indemnified, is included in the employment contract for all legal purposes, including wages and the guarantee fund.
Thus, the Regional Labor Court
Trial at the TST
According to the judgment of the supermarket appeal, the former employee would be entitled to receive compensation of 40% of the FGTS on notice, since it was an exemption without good reason. The rapporteur, Minister Breno Medeiros, concluded that TRT-12 contravened SST-1 Special Adjudicator (SDI-1) Subdivision I Guideline 42. According to case law, "the amount of the fine FGTS 40% must be calculated on the basis of the account balance corresponding to the date of the actual payment of the sums of termination, without taking into account the projection of the notice with compensation for lack of legal provision."
The Fifth Chamber of the TST unanimously allowed the appeal to exclude the payment of the FGTS fine of 40% on the pre-indemnified notice.
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