Jornada de trabalho no registro de ponto por execução e a jurisprudência do TST: a quem pertence o ônus probatório, ao empregado ou ao empregador?

Abstract

The Law no 13,874/2019, also known as Law of the Economic Freedom, promoted important alterations in the Consolidation of the Laws of work - CLT. One of them, was the possibility of implementation of the control of point for exception, by means of adjustment between the employee and the employer, the individual or collective level. This change brought new reflections on the responsibility of the test in the control of the hours of working since, with this new modality, it will be necessary only to the notation of the bonanza situations as: overtime, intervals, amongst others, and not more the regular daily day carried through by the employee. Thus, with I better look it of understanding to who it belongs the responsibility of the test in the control of point for exception of the hours of working, was approached, in this monograph, initially, the general aspects of the hours of working. After that, it was treated regarding the responsibility of the test and its application in the process of the work, giving has detached specifically to the probationary responsibility in regards to the hours of working. In the last chapter, it was argued on the responsibility of the test in the control of point for exception, if the incumbency fits to the employee or the employer. To this end, the hypothetical-deductive method was adopted in order to test the premise that the burden of proof, at the point of exception, lies with the employee, thus carrying out an analysis of the decisions made by the TST regarding the matter and mitigation of the static distribution of the burden of proof based on Precedent 338 of this Court. At the end, conclusion was arrived of that with the adoption of the control of point for exception, using itself the literality of legal devices, the responsibility of the test fits the worker. However, considering the peculiarities of the case concrete and that to the Process of the Work the protective principle is applied, this responsibility it can be inverted, attributing the employer to it such incumbency, when it not present no notation of exception to the regular day of work or when these exceptions not to present no variation in its control.