O MPT acionou a Justiça contra uma empresa prestadora de serviços temporários por descumprimento da cota de pessoas com deficiência. A empresa alegava que só tinha 13 empregados próprios, e os restantes eram regidos por contratos temporários, de acordo com a necessidade das tomadoras.
A Segunda Turma do Tribunal Superior do Trabalho decidiu que a Sé Assessoria de Recursos Humanos Ltda., de Curitiba (PR), deve calcular a cota de pessoas com deficiência prevista em lei considerando todos os seus empregados, inclusive os contratados sob o regime de trabalho temporário. O colegiado também reconheceu o dano moral coletivo e fixou indenização de R$ 50 mil.
Empresa atua como intermediadora de mão de obra temporária
A ação civil pública foi proposta pelo Ministério Público do Trabalho (MPT) após um inquérito instaurado para investigar o descumprimento da cota legal por empresas do setor de terceirização. Entre elas estava a Sé, cujo modelo de negócio consiste exclusivamente em contratar trabalhadores temporários e cedê-los às empresas tomadoras de serviço.
A Superintendência Regional do Trabalho autuou a empresa e registrou que, embora movimentasse grande volume de mão de obra, ela não cumpria o percentual mínimo de pessoas com deficiência. Em sua defesa administrativa, a empresa alegou que tinha apenas 13 empregados próprios e que os temporários não poderiam compor a base de cálculo. O recurso administrativo foi rejeitado, e o MPT entrou na Justiça para exigir o cumprimento da cota e a reparação por dano moral coletivo.
A 23ª Vara do Trabalho de Curitiba julgou improcedente a ação, e o TRT da 9ª Região manteve a sentença. Para o TRT, por atuar exclusivamente com trabalho temporário, a Sé estaria submetida a demandas urgentes das tomadoras, o que dificultaria o cumprimento imediato da cota. Com menos de 100 empregados próprios, a empresa não estaria obrigada a preencher a cota.
Cota deve ser observada mesmo por empresas que trabalham exclusivamente com temporários
Ao analisar o recurso de revista do MPT, a ministra Liana Chaib afastou a interpretação adotada pelo TRT. Segundo ela, a Sé é a empregadora de todos os trabalhadores que contrata, inclusive os temporários, e o artigo 93 da Lei 8.213/1991 não faz distinção entre empregados permanentes e temporários para fins de cumprimento da cota. Excluir essa categoria esvaziaria a finalidade da política pública de inclusão, pois empresas que atuam exclusivamente com trabalho temporário passariam, na prática, a não ter obrigação nenhuma de contratar pessoas com deficiência.
Ela ressaltou que a atividade empresarial não altera a natureza do vínculo empregatício e que a Convenção da ONU sobre os Direitos das Pessoas com Deficiência (Convenção de Nova Iorque), com status constitucional, reforça o dever de adoção de ações afirmativas para assegurar igualdade de oportunidades. Liana Chaib também citou precedente do Supremo Tribunal Federal (STF) que veda a exclusão prévia de categorias profissionais da base de cálculo da cota legal (ADI 5760).
Descumprimento configura dano moral coletivo
A ministra também reconheceu a existência de dano moral coletivo. Para ela, a resistência injustificada da empresa a cumprir a cota viola valores sociais do trabalho, compromete políticas de inclusão e atinge a coletividade. A decisão destaca que a política de cotas foi criada para corrigir desigualdades estruturais e que seu descumprimento frustra a função social da empresa e repercute além das relações individuais. Considerando o porte econômico da empresa e a gravidade da conduta, a indenização foi fixada em R$ 50 mil, a serem destinados ao Fundo de Amparo ao Trabalhador (FAT).
A decisão foi unânime.
O TST tem oito Turmas, que julgam principalmente recursos de revista, agravos de instrumento e agravos contra decisões individuais de relatores. Das decisões das Turmas, pode caber recurso à Subseção I Especializada em Dissídios Individuais (SDI-1). Acompanhe o andamento do processo neste link:
Processo: RR-893-56.2014.5.09.0088
Fonte: Secretaria de Comunicação Social – Tribunal Superior do Trabalho
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