A prescrição ex officio e a possibilidade de sua aplicação no processo do trabalho

Abstract

In the indirect challenge of merit, also known as a “substantial exception”, the defendant recognizes the fact that constitutes the author's right, but opposes another fact that prevents, modifies or extinguishes the request made in the initial petition. Impeding facts are those that cause the ineffectiveness of the constitutive facts alleged by the author. This is the case of the claimant who requests payment of prior notice, claiming to have been dismissed without just cause, and the defendant acknowledges the dismissal, but claims that the dismissal was due to the act of improbity of the claimant (CLT, art. 482, the ). Modifying facts are those that imply a change in the constitutive facts alleged by the author, as occurs when the claimant asks for the full and immediate payment of profit sharing in the amount of R $ 1,000.00 and the defendant claims that the payment was adjusted in monthly installments , and not fully and immediately. In our view, compensation and retention, expressly provided for in art. 767 of the CLT, are examples of modifying facts. Extinguishing facts are those that eliminate, extinguish or render the defendant's obligation worthless, as it is no longer enforceable. Example: claimant asks for payment of wage balance and the defendant claims that he has made the respective payment. Waiver, transaction, prescription and decay are also extinct facts of the copyright.