TST cuts 6 hours of overtime for Fasano employee who said he worked 20 hours a day

The TST (Superior Labor Court) partially annulled a labor lawsuit that ordered the Casa Fasano buffet to register a former employee and pay, in addition to severance and labor payments, the equivalent of 12 overtime hours a day.

A former chef at the buffet told the Labor Court in São Paulo that his workday was approximately 20 hours a day for three years. In a lawsuit filed in 2010, he stated that he started work at 6 am and only stopped at dawn, around 2 am.

The company was even ordered to register the worker, who was informal, to pay overtime and other labor and severance pay, all over the 20-hour journey.

In August of this year, however, the TST’s Subsection 2 Specialized in Individual Agreements accepted the argument of the defense of Casa Fasano that the 20-hour working day was “humanly impossible” and determined that the sentence be recalculated.

The worker’s defense calculates that the elimination of six hours a day from the calculation of overtime will reduce the final value of the action by up to 40%. Even so, the worker should receive, already considering the monetary correction applied to more than ten years of action, about R$ 1 million.

Casa Fasano is the buffet of the group founded by the family of the same name, which includes other gastronomic brands in São Paulo, such as the Gero, Parigi and Fasano restaurants, in addition to a hotel in São Paulo, another in Rio, and Fazenda Boa Vista. , luxury condominium in Porto Feliz (SP). In a statement, the group said it respects and accepts the court decision.

In the process, however, Casa Fasano is still trying to completely annul the conviction determined by the São Paulo court (an embargo was presented). Lawyer Jorge Pinheiro Castelo, from the Palermo e Castelo office, which represents the group, says he understands that the worker’s original claim was legally impossible.

The worker who sued Casa Fasano declined to be interviewed. He no longer works in restaurants.

understand the decisions

For the rapporteur of the rescission action in the TST, Minister Amaury Rodrigues, the situation presented by the worker to the Justice in São Paulo “defies the basic need of the human being” for meaning that the employee slept less than four hours a day.

In the first instance, Casa Fasano was sentenced in absentia, as it did not appear at the hearing where it was supposed to present its defense. For the judiciary, this type of omission represents a type of presumed confession.

Without the company’s version, the 37th Labor Court of São Paulo considered the version presented by the worker in the initial request to be true, that he worked from 6 am to 2 am, had two 30-minute breaks, took one day off a week and worked on Sundays. each six months.

Lawyer Augusto Martinez, who represents the worker, says that the TST’s understanding is teratological, a term used in the legal environment to classify decisions considered absurd.

“Whether or not this was his journey, it no longer matters. The judgment in absentia turns black into white and the rescission could not re-discuss the merits of the action. This would have to be done in the course of action [original].”

Pinheiro Castelo, on the other hand, uses the same term to classify the buffet’s condemnation. “We believe that there was an error in fact. [na decisão] because it is a physically impossible journey.” According to the lawyer, the existence of a verifiable error is one of the requirements set out in the Civil Procedure Code for the presentation of a rescissory action.

“Nobody can work 20 hours a day, from Monday to Saturday, for three years. A day or two is still there, but it was an impossible workload”, says Castelo.

For the rapporteur in the TST, the physical possibility of carrying out such an extensive working day was admitted, in the original action, only by presumption – “and not as a result of the assessment of the evidence produced”, wrote Minister Rodrigues. This presumption, according to him, does not authorize “the recognition of an impossible fact”.

The worker says, in the lawsuit presented to the Justice, that he worked under “slavery regime” and that he had about three hours of rest in a dormitory for employees.

He is also reported to have started working for the company in May 2006 as a kitchen boy. He worked there until August 2009, as a chef. During this period, he was not registered in his wallet and payments were made per day or night of work.

The worker also said that he worked two consecutive shifts. Daytime work would be devoted to preparing for nighttime events.

For Minister Amaury Rodrigues, “as the claimant worked as a cook”, there would be no justification for him to have to work in the morning. With this, he concluded that the average cook’s journey started around 12:30 and continued until 2:00, with a 30-minute break, five days a week.