Rescisão por acordo ou demissão consensual, ocorreu para regulamentar o que era feito de forma ilegal, com alguns aspectos diferentes que trataremos no decorrer do artigo

Rescisão contratual por acordo

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A Reforma Trabalhista em vigor pela Lei 13.467/2017 trouxe diversos temas que foram instituídos para regularizar e melhorar a relação entre funcionários e empregador. Uma dessas alterações da Reforma Trabalhista foi a introdução do artigo 484-A da CLT, que com a sua publicação trouxe a Rescisão Contratual por Acordo.

Como era feito antes da publicação do artigo 484-A, era costume o funcionário pedir de forma informal que o empregador o demitisse, com a condição de que o funcionário devolvesse a multa rescisória, porém o funcionário conseguiria sacar o saldo de FGTS e receber o Seguro Desemprego. Por vezes, os empregadores acolhiam o acordo com o intuito de agradar o seu funcionário.

Porém, esse acordo nunca foi previsto em legislação, ou seja, era ilegal, podendo causar problemas com a justiça para o empregador e para o funcionário, por ser considerado fraude. Portanto, essa nova modalidade de rescisão, a Rescisão contratual por acordo ou demissão consensual, ocorreu para regulamentar o que era feito de forma ilegal, com alguns aspectos diferentes que trataremos no decorrer do artigo. Proporcionando assim tranquilidade jurídica para funcionário e empresa.

A rescisão contratual será por acordo, ou seja, um consenso, conformidade entre empregado e empregador, sem que os atos de um contrariem o do outro, eis que se não houver será considerado um pedido de demissão ou rescisão sem justa causa por parte do empregador. Portanto, jamais deverá ser imposta. É um acordo com prudência entre ambas as partes.

O novo artigo celetista:

Art. 484-A: O contrato de trabalho poderá ser extinto por acordo entre empregado e empregador, caso em que serão devidas as seguintes verbas trabalhistas:

 I – por metade:

o aviso prévio, se indenizado; ,

a indenização sobre o saldo do Fundo de Garantia do Tempo de Serviço, prevista no §1° do art. 18 da Lei n° 8.036, de 11 de maio de 1990;

II – na integralidade, as demais verbas trabalhistas.

1° –  A extinção do contrato prevista no caput deste artigo permite a movimentação da conta vinculada do trabalhador no Fundo de Garantia do Tempo de Serviço na forma do inciso I A do art. 20  da Lei n° 8.036, de 11 de maio de 1990, limitada até 80% (oitenta por cento) do valor dos depósitos.

2° –  A extinção do contrato por acordo prevista no caput deste artigo não autoriza o ingresso no Programa de Seguro-Desemprego.

1. Do Acordo:

  • • Orienta-se que o mesmo seja realizado formalmente, ou seja, por escrito e que seja redigido de próprio punho pelo empregado.
  1. 2. Verbas Trabalhistas:
  • • Conforme  artigo 484-A da CLT, serão devidas as seguintes verbas trabalhistas:

I – por metade:

a) o aviso prévio, se indenizado (ou seja, 15 dias indenizados);

b) a indenização sobre o saldo do Fundo de Garantia do Tempo de Serviço (multa rescisória de 20%);

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II – na integralidade, as demais verbas trabalhistas.

a) – na integralidade:

– férias proporcionais;

– décimo terceiro salário proporcional: a cada 15 dias laborados no mês o empregado garante o avo do décimo terceiro salário.

– o aviso prévio trabalhado, ou seja, o empregado terá direito aos 30 dias de aviso prévio trabalho.

III – proporcional:

Saque do FGTS, limitado a 80% do valor do saldo;

      • 3. Anotação na Carteira de Trabalho:
      • • A baixa na CTPS, quando o aviso for trabalhado, ocorre da mesma forma que as outras rescisões, sem indicar que a modalidade da rescisão foi por acordo.

• Conforme Instrução Normativa SRT n° 15, de 14 de julho de 2010, quando o aviso prévio for indenizado a data da saída a ser anotada na CTPS deve ser:

I – na página relativa ao Contrato de Trabalho, a do último dia da data projetada para o aviso prévio indenizado;  e

II – na página relativa às Anotações Gerais, a data do último dia efetivamente trabalhado.

4. Pagamento da Rescisão:

    • • Na Reforma Trabalhista também ficou definido que independentemente do motivo da rescisão, o pagamento deve ser efetuado até 10 (dez) dias contados a partir do término do contrato.
      • • Apenas deve ser observado se na Convenção Coletiva possui alguma orientação diferente que, neste caso, deverá ser seguida.

Sendo assim, mesmo com aspectos diferentes do que era feito antes, a rescisão por acordo é uma inovação da Reforma Trabalhista. Regulamentando uma situação que era de costume entre funcionário e empregador, tornando – a legal. Recomendamos que as empresas observem todos os requisitos para adotar esse procedimento de rescisão contratual por acordo, para evitar qualquer problema jurídico.


 

BRASIL. Lei nº 13.467, de 13 de julho de 2017. Altera a Consolidação das Leis do Trabalho (CLT), aprovada pelo Decreto-Lei no 5.452, de 1o de maio de 1943, e as Leis nos 6.019, de 3 de janeiro de 1974, 8.036, de 11 de maio de 1990, e 8.212, de 24 de julho de 1991, a fim de adequar a legislação às novas relações de trabalho. Brasília, DF, 13 jul. 2017.

BRASIL. Ministério do Trabalho e Emprego. Secretaria de Relações do Trabalho. MTE-SRT. Instrução Normativa nº. 15 de 14 de julho de 2010. [S.l.]: [s.n.], 2010.

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