The 8th Panel of the Regional Labor Court of the 1st Region (TRT/RJ) denied the appeal of a former employee of the State Water and Sewage Company (Cedae) who sought recognition of deviation of function, with the payment of the salary differences owed.
The panel followed, unanimously, the vote of the rapporteur of the judgment, Appellate Judge Roque Lucarelli Dattoli.
Hired on October 30, 1987, in the position of professional support assistant, the employee filed a labor lawsuit alleging he had been in deviation of function for five years, working, in practice, as a pumping-station operator in the company’s reservoir sector. He declared that, during the period, he was not remunerated correctly, taking into account the activity that was being performed.
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At first instance, the case was judged at the 72nd Labor Court of Rio de Janeiro. A witness for the worker stated that both operated a motor pump, activating mechanical and electrical equipment at the pumping station, work proper to an operator. However, she did not mention that it fell to the employee to perform other tasks typical of the function, such as packing (sealing), adjustment of parts, checking oil and lubricant levels, and cleaning the grates of the sewage pumping stations, among others.
Documents brought to the case records, such as operational control and maneuver maps, did not prove the full exercise of the functions pertinent to the position. The first instance dismissed the request, leading the worker to appeal the decision.
Deviation of function – concept
According to the rapporteur of the judgment, it is possible to infer, from the witness’s testimony, that the employee did indeed perform functions foreign to the position, but to go from there to recognizing that he in fact performed the functions inherent to a pumping-station operator, in their fullness, would require traveling a long distance. “Authentic deviation of function presupposes that the worker who finds himself in it occupies himself with all the tasks or services that make up the ‘profile’ of the position,” he clarified.
In the magistrate’s understanding, the witness’s testimony and the documents brought to the case records were not sufficient for the worker to discharge the procedural burden of his allegations. Therefore, the appeal was denied.
In decisions handed down by the Labor Justice system, the appeals enumerated in Article 893 of the Consolidation of Labor Laws (CLT) are admissible.
Source: TRT 1st Region
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