The Superior Labor Court (TST) annulled part of a sentence in which a 20-hour working day alleged by a chef at Casa Fasano Eventos, in São Paulo (SP) was recognized.
For the collegiate of Subsection II Specialized in Individual Agreements (SDI-2), this workload is humanly impossible to practice, as the employee would have less than 4 hours of sleep per day.
Despite canceling the overtime part of the original sentence, the SDI-2 magistrates unanimously decided to maintain the company’s conviction and stipulated a working day of 1:30 pm a day (from 12:30 pm to 2 am), with a 30-minute break. (see more below).
To redefine overtime, the rapporteur minister of the case, Amaury Rodrigues, analyzed the testimony of the chef himself at the initial hearing, when he admitted to taking off once a week and on Sundays, and the existing evidence on the types of events held by Casa Fasano. .
Casa Fasano is a venue for corporate and social events under the Fasano brand, which also has hotels in several cities in Brazil and around the world; restaurants like Fasano, Parigi and Gero; cafe and even emporium. Casa Fasano is part of the brand’s buffet.
understand the case
In the labor complaint, the chef said that he had worked for Casa Fasano between May 2006 and August 2009, when he got a new job, and that the contract had not been registered in his work permit.
He also said that his journey started at 6 am and ended around 2 or 3 am the next morning, with a weekly day off. Therefore, he asked for the payment of overtime and night shift.
The company did not present any defense in the process and, therefore, the 37th Labor Court of São Paulo considered the journey declared by the chef to be true and accepted his requests, condemning Casa Fasano in absentia.
After the deadline to appeal, Casa Fasano filed a rescissory action at the Regional Labor Court of the 2nd Region (TRT2), with a request for expertise to demonstrate that the 20-hour day, 6 days a week, is humanely impossible to practice.
But the TRT rejected the request, on the understanding that this type of action is not intended for the re-examination of evidence, and highlighted that the company was cited in the process, but had missed the hearing to defend itself and give evidence.
In the TST, the minister reporting the case stated that the type of service provided by the chef demands physical effort and a state of alert. He also said that the 20-hour workday would require the worker to sleep less than 4 hours a day, a situation that “defies the basic physiological need of the human being”.
For Rodrigues, the presumption that the time alleged by the employee was true, based only on the conviction in absentia, not on the evaluation of the evidence, does not authorize the recognition of an impossible fact. Thus, he overturned the sentence on the point concerning overtime.
By redefining the chef’s working hours, from 12:30 pm to 2 am for 5 days a week, the minister analyzed the chef’s own testimony at the initial hearing, and the existing evidence about the types of events held by Casa Fasano.
With the decision, the worker will receive overtime for the service provided from the 8th daily hour, with the respective night shift. The rapporteur’s vote was followed by all the other ministers, making the decision unanimous.