Chibatão is ordered to pay hazard pay to former employeeThe former employee vistoriava dangerous goods and works exposed to hazardous agents.
Failure to possible exposure to hazardous materials, even without direct contact with the causative agent of risk, generates entitled to payment of hazard pay. From this unanimous understanding, the Second Panel of the Regional Labor Court of the 11th Region – AM/RR (TRT11) reformed unfounded sentence and granted hazard pay to a former employee of the port Chibatão Navigation and Trade Ltd..
In partially granted the claimant's appeal, the collegial decision followed the vote of the rapporteur federal judge Marcia Nunes da Silva Bessa and condemned the claimed payment of the percentage of 30% calculated on the basic salary, with impact on 13th salary, vacation, FGTS and notice, calculated in the period imprescrito (within five years retroactive to the date of filing of the suit).
In the appeals trial, the rapporteur welcomed the arguments pointed contradiction in the expert report. According to the applicant, found expert in the art to play usual exposure to hazardous cargoes, including flammable and explosive materials, but it concluded that the risk would be restricted to short.
After thorough analysis of all the evidence produced in the records, a federal judge highlighted passages in which the expert has reviewed the activities of the container surveyor, making it clear that he worked exposed to hazardous agents.
In presenting considerations on the right to hazard pay, a federal judge Marcia Nunes da Silva Bessa explained that are considered dangerous activities or those operations involving permanent contact with flammable or explosive in increased risk conditions, in terms of Clause 193 CLT. In this context, she stressed that Precedent 364 of the Superior Labor Court (TST) the meaning defined for “permanent contact”, providing that lives up to the additional hazard employed permanently exposed or, intermittently, subject to hazardous conditions.
“The list of dangerous goods shows the arrival, with a weekly frequency, flammable materials, corrosive, radioactive etc.. e, although the work of the complainant were the surveys for the identification of faults, It can not be ignored that this work exposed him to the risk”, he argued, emphasizing the relationship of dangerous goods Year 2012 e 2013 Attached to the file.
Although there found exposure to hazardous material author, in understanding the rapporteur the expert failed to clarify the differences between occasional and intermittent contact. “The eventual contact is one that is fortuitous, sporadic, no forecast to occur. It's not what happens in the company's reality”, He explained in his vote, adding that the judge is not bound to the report, should observe whether the evidence contained in the records bring contrary elements and more convincing than the expert conclusion. “Like this, evidenced intermittent contact, no right to the perception of the risk premium”, concluded.
Still subject to appeal against the decision of the Second Panel.
In July 2016, the author filed a labor lawsuit narrating who worked for Chibatão the period July 2008 to September 2014, initially in the inspection auxiliary function and then promoted to container surveyor, by last salary of $ 2.093,40.
According to the application, workers performed inspections of cargo containing gases, flammable liquids and solids; alcohol; petroleum; explosive substances, toxic and infectious, radioactive materials and corrosives, among other hazardous materials. As a result of the narrated facts, it required the payment of hazard pay and legal repercussions.
Based on an expert report prepared by work safety engineer, whose conclusion pointed out that the contact with hazardous agents were given out in any way, the judgment of the 15th of Manaus Labor Court dismissed the plaintiff in.