08/26/2023 – 21:51
After the Court of Justice of São Paulo (TJ-SP) determined this Friday, 25th, the suspension of an excerpt of a Municipal Law sanctioned by Mayor Ricardo Nunes (MDB) that deducts the vacation of public servants on sick leave, the São Paulo City Hall defended the legislation and emphasized that the rule included in the order in December 2021 corrects distortions and is more advantageous for the server than the CLT. The rule was suspended by Judge Evaristo Sá until the trial of the action. Notified, municipal management said it will appeal.
The paragraph in question was included in the legislation that dealt with the daily value of food stamps and meal allowances for public servants, and originated from project 652/2021, sent to the Chamber by the city hall. The text said: “For the purposes of acquiring the right to vacation, the employee’s actual exercise time will be considered, corresponding to the days of actual attendance at work, the periods related to leave or leave from service considered by the legislation as effective exercise , as well as medical licenses to treat the server’s own health, up to a limit of 6 (six) months, even if discontinuous, during the acquisition period.”
In the decision, Judge Evaristo dos Santos reiterated that the special body had already considered unconstitutional similar legislation providing for the legal regime of public servants. With that, he determined the suspension of the section “up to the limit of 6 (six) months, even if discontinuous”, from the final part of the text.
According to City Hall, “the previous rule, provided for in the Statute of Public Servants of the Municipality of São Paulo, since 1979, did not consider leave for treatment of one’s own health as an effective exercise, except for retirement purposes – therefore, it was not considered for define the vesting period of vacation, but only for retirement”.
Still according to the City Hall, with this, the old rule “did not determine proportionality between the period actually worked and vacation days. It therefore followed that, if the server stayed 364 days away and only one day in the effective exercise, he would be entitled to 30 days of vacation”. “This caused distortions”, points out the administration of Ricardo Nunes.
According to the administration, Law 17.722/2021 sought to correct this situation, creating proportionality between the days worked and the vacation period.
“Regarding public servants’ sick leave, article 15, paragraph 1 ensured that medical leave to treat the public servant’s own health, up to a limit of 6 (six) months, even if discontinuous, are counted as effective exercise and considered for the acquisition of proportional vacations”, explained the administration.
The City of São Paulo also stated that the new rule is in line with the decision of the Federal Supreme Court (STF), with general repercussions. The general repercussion 221, of the Supreme Court of the Brazilian Judiciary, prohibits municipal administrations, in their legislative autonomy, from restricting the right to vacation of public servants on sick leave, in order to make it impossible to enjoy vacations. “What does not occur in the new legislation, which guarantees the exercise of 15 days of vacation even if the server remains throughout the entire period on leave, justifies the City Hall.
Management thus states that there was a “correction of an omission that led to the disproportion between days actually worked and days on vacation”. “The treatment given to the theme “medical leave x vacation” in the current municipal law is more advantageous to the server than the CLT to the CLT employee”, completed the City Hall, in a note.
The lawsuit questioning the constitutionality of the passage in question was filed by federal deputy Luciene Cavalcante (SP), state deputy Carlos Giannazi and councilor Celso Giannazi, all from PSOL. In the decision, Judge Evaristo dos Santos also determines that the State Attorney General’s Office be summoned so that, if he so wishes, he can contest the action, and requests information both from Mayor Ricardo Nunes, author of the project that gave rise to the law later sanctioned by him, and from the São Paulo City Council, which approved the text.
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