Banca de DEFESA: LUIZ PHILLIPE DE OLIVEIRA GOMES MARTINS

Uma banca de DEFESA de MESTRADO foi cadastrada pelo programa.
STUDENT : LUIZ PHILLIPE DE OLIVEIRA GOMES MARTINS
DATE: 24/11/2021
TIME: 09:30
LOCAL: MACEIÓ
TITLE:

The prohibition of the intimate search in the workplace as a guarantee of the fundamental right to intimacy

 

KEY WORDS:

Keywords: Civil liability; Social function; Employment power; Intimacy; Intimate search.

PAGES: 234
BIG AREA: Ciências Sociais Aplicadas
AREA: Direito
SUBÁREA: Direito Privado
SPECIALTY: Direito do Trabalho
SUMMARY:

The employer's supervisory power characterizes one of the expressions of the employment power linked to the continuous monitoring of the provision of services in the work environment. Based on this prerogative, intimate search about the personnel and the personal objects of the employees are adopted to guarantee internal surveillance. The discussion on the topic of “intimate search” in the workplace took on a new shape with the paradigm set by Subsection I Specialized in Individual Disputes (SBDI I) of the Superior Labor Court (TST) when signing a legal thesis that the search procedure carried out in the personal belongings of all employees it is contained within the scope of the supervisory power when adopted in an indiscriminate manner and without physical contact. However, the aforementioned statement of the positive right concerning the intimate search, present in Art. 373-A, VI, of the       Labor Relations Code (CLT) and in Law No. 13.271 / 2016, encourages reassessment by the Science of Law. The object of the dissertation is to evaluate the constitutional limits of the intimate search in the workplace as a guarantee of the fundamental right to intimacy. Methodologically, legal bibliographic research and the deductive method are adopted it. The legal analysis was carried out (1) based on the doctrine on the protection of privacy in the field of fundamental rights and in the analysis of the legal system of the country; and, (2) with respect to the deductive examination, from a major premise - the constitutional and infraconstitutional rules - to a minor premise - the specific case of the analysis of the intimate search in the workplace. In chapter one, some premises will be stipulated from the study of the constitutionalization of Labor Law; the legal effectiveness of fundamental rights in relations between individuals; and, still, of the proportionality rule in Robert Alexy's conception. Given these assumptions, in the second chapter will approach the evolution of the fundamental right to privacy; the supervisory power in the workplace in the exercise of the employer's property right; to in the end, investigate the intimate search about the person and the personal objects of the workers. In chapter three, it will examine the social function of property and the company; as well as the economic, social and environmental aspects (triple botton line), in which the figure of the worker presents itself as an important stakeholder worthy of legal protection in the dynamics of business activity. Finally, chapter four, the investigation will lead to civil liability in the face of the employer's disrespect for the company's social function when exercising abusive inspection through intimate searches, thus constituting an off-balance sheet damage. It is believed that it is possible to affirm that disproportionate searches in the person or personal objects in the workplace that violate the fundamental right to privacy represent intimate search, so that, when performed against the company's social function, it constitutes an unlawful act causing harm off-balance sheet subject to civil liability.

 

BANKING MEMBERS:
Presidente - 1734534 - PEDRO HENRIQUE PEDROSA NOGUEIRA
Interno - 3289832 - JOSE BARROS CORREIA JUNIOR
Externo à Instituição - MARCO FÉLIX JOBIM - PUC - RS