The Labor Court of the 3rd Region (MG) validated the dismissal for just cause of a worker who, on the day he was away from the service due to a medical certificate, posted on social networks photos of him appearing with a co-worker in a private fraternization in a leisure club. The sentence is from Judge Marcel Lopes Machado, who, in his performance at the Labor Court of Uberlândia, examined the lawsuit filed by the worker against the company.
The author and co-worker presented medical certificates at the company, which registered incapacity for work in the period from 19 to 21/2/2019. However, photographs on the author’s social networks, posted on 2/21/2019, showed that they were together in a private fraternization held in a leisure club.
In response to letters sent by the judge, the club reported that there was no personal record of the author and his colleague’s entry on the day the posts were made. “But, for the magistrate, this was not enough to dispel the presumption that they were, in fact, there on that date, considering that the club also informed that it is possible to enter without a personal registration through the membership card, only with the exhibition of the partner contract or by means of a master card ”presents Sabrina Rui, lawyer.
In personal testimony, the author confirmed that the photos of private leisure were taken at the club, however on a day before the date of the posts, without specifying the day. But, for the magistrate, it was up to the worker to prove his allegations, which, however, did not occur, reason why the presumption prevailed that the event happened, in fact, on the day of the posts, when the author was away from the service due to medical certificate.
Finally, because it is about the personal posting of employees, through their social networks, digital platforms of unrestricted public access, employees must assume responsibility for their manifestation of will there made public, by legal imperative (article 112 / CC), because in the civil order, everyone is subject to rights and duties (article 1 / CC).
“As stated in the sentence, the worker’s conduct – of being on a private leisure day on a leave of absence due to a certificate of temporary incapacity to work, together, or in co-authorship with another employee in the same situation -, is serious enough to constitute just cause for dismissal, because it is a bad procedure (article 482, b / CLT), in addition to encouraging the indiscipline of other employees, ”explains Dr.
The immediacy in the penalty application and the existence of a previous warning record to the author, due to an act of indiscipline in the work environment, also contributed to the validation of the just cause applied to the worker. “In this scenario, requests for unfair dismissal were rejected in the sentence. There was an appeal, which is awaiting judgment at the Regional Labor Court of the 3rd Region (MG) ”concludes lawyer Sabrina.
Dra. Sabrina Marcolli Rui
Lawyer in tax and real estate law
SR Advogados Associados