In short, the employee's argument resided in the understanding that "desdly" in the joining the documentation was imporited to the company the consequences of the fictive confession, time the employer has a duty to note the schedules worked by its employees, as well as Maintain such information in your records, as required by relevant legislation.
However, the understanding reached the sixth class of the Superior Court of Work, in the case mentioned, was that if the postulant holds documents capable of proving labor in extraordinary hours, there is no reason to reverse the proof production burden.
Although somewhat obvious, such an idea is not so present in the judges, since it is quite common that, under the justification to ensure the highest parties equality within the process, the burden of the role is inverted as regards the matter , relating the text of the consolidation of labor laws, as well as the Civil Procedure Code, which preach that a certain "fact" should be certified documentally by the one that aduz.
However, they deserve greater consideration of the courts the rules guaranteeing employees' access to documents which are often skilled to prove the rights vindicated in labor claims. This is because, if material law evolves in a proportional way to advances in technology and workers' guarantees, procedural law and their interpretation should also monitor such advances.
Nevertheless, malgrade the foundation of the decision is specific to the profession of machinist, in which the law expressly provides that the annotation of the hours worked must be carried out in two ways, one for the employee and another for the employer, the concierge 1.510 / 09 of the Ministry of Labor and Employment, whose application is much broader, in creating the company's obligation to deliver to its employees, at each marking made, a copy of his schedule record, also imposes the burr of the Such documentation in court, under penalty of characterizing the non-compliance with the rules laid down in those already mentioned Articles 818 of the consolidation of labor laws and 373 of the Code of Civil Procedure.
Adept of this Understanding, the Journal of Labor, Carlos Henrique Bezerra Leite, points out that, from the moment the employer adopts the new electronic point control system, as well as, delivers the proof of the respective registry to the worker , to this (and not to the employer) must be attributed to the obligation to prove differences between scheduled time and which claims to be the real.
In this way, the understanding was prevailed in the sense that the burden of the test as to the employee's work day (which had its controlled schedule routine) was the employer, because this holder of such records, currently of the obligations imposed on undertakings so that copies of these records are made available to the worker, the distribution of the burden of proof is not justified in the same way as the reassessment of the matter in the light of existing legal devices is required.
