Distribuição dinâmica do ônus da prova no Direito processual no trabalho brasileiro.

Abstract

This paper has its main objective a research about the dynamic distribution of the burden of proof on Labor Law Procedure area. The evidence is essential to the process because it is through it that the parties seek to convince the magistrate. Another important matter comes to the burden of proof, wherein the national legal system is responsible for disciplining the burden of bringing evidence to the court. The current Brazilian legal system adopts a static model of distribution of the burden of proof in the Labor Law Procedure, as can be seen by reading the article 333 of the Civil Procedure Code and the article 818 of the Labor Law Code. However, this model has been changing with time, considering that the article 6, item VIII from Code of Consumer Protection brings the judicial reversal as a way to flexible the distribution of the burden of proof. It happens, according to the doctrine, these rules proved insufficient. In recent times, the theory of dynamic distribution of the burden of proof, especially in the labor process has gained importance. Besides, projects of the new Law of Civil Action and the new Civil Procedure Code anticipate this theory, aiming to remedy the problem of, which is difficult or impossible proof of production as well as assign the proof anyone with cheap ease for producing it. Considering the lack of a regulating norm of this matter, the doctrine and jurisprudence have been used as base to its application, and the principles of inseparable jurisdiction and materials equality, and the decision that dynamically allocate burdens of proof, nurture the adverse part a contradictory and full defense. Finally, the applicability of this theory will be studied, in litigations involving workday, vouchers, deposits of “FGTS”, discrimination in employment relationships, a higid, safe and ergonomic working environment, violation of privacy and intimacy of the worker and the moral and sexual harassment in employment relationships. In seeking answers to the concerns raised as issues of research, had been used to document research with the use of doctrines, with the purpose of demonstrating the emergence and evolution of the theories of the burden of proof at the time held a parallel between the static distribution, the court reversal and the dynamic distribution of the burden of proof; and finally, made use the legal exegetical method with an interpretation of device from Civil Procedure Code of 1973, the Consolidation of Labor Laws, the Code of Consumer Protection, and a lot of various projects and draft bills