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Direito

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Direito

Conquista de Direito

A Quarta Turma do Tribunal Superior do Trabalho condenou o Kiss Motel Ltda., de Vitória (ES), a pagar a uma camareira, em dobro, os feriados em que ela trabalhou. A decisão, unânime, baseou-se na Súmula 444 do Tribunal, que estabelece a remuneração em dobro no regime de revezamento 12 X 36.

A camareira foi à Justiça requerer, além de diferenças de horas extras, pagamento em dobro por ter trabalhado em feriados de Natal, Ano Novo, Proclamação da República, Finados, Nossa Senhora Aparecida, Independência e aniversário da cidade de Vitória (8 de setembro). Afirmou que, no regime de trabalho 12×36, sempre trabalhou em feriados sem a devida folga.

A 10ª Vara do Trabalho de Vitória (ES) julgou parcialmente procedentes os pedidos da empregada, e condenou o motel a pagar quatro horas extras quinzenalmente, levando em consideração a escala 12×36. O Tribunal Regional do Trabalho da 17ª Região (ES) aumentou a condenação com relação às horas extras, mas manteve a sentença nos demais itens.

Para o Regional, o trabalho aos feriados não enseja o pagamento das horas extras em dobro porque o trabalhador, em virtude da natureza da escala de trabalho, poderia trabalhar em dias coincidentes com feriados e, em contrapartida, a cada 12 horas de trabalho, gozava de 36 horas de descanso. Ainda para o Regional, a folga deve ser, preferencialmente, aos domingos e feriados, mas não se exige que todos os descansos sejam nesses dias.

A camareira novamente recorreu, e o TST deu-lhe razão. Para a Quarta Turma, a decisão do Regional de indeferir a remuneração em dobro sob o fundamento de que, no sistema de compensação de jornada de 12 horas de trabalho por 36 horas de descanso, o trabalho eventualmente realizado em feriados já estaria embutido no descanso concedido, contrariou a atual jurisprudência do TST (Súmula 444). A decisão se deu com base no voto da relatora, ministra Maria de Assis Calsing.

(Fernanda Loureiro/CF)

Fonte: TST

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