A distribuição dinâmica do ônus da prova no processo do trabalho

Abstract

The theory of dynamization of probation charges withdraws the static position based on prior traditional models of distribution of the burden of the proof between the parties, in order to adapt this dividing to a concrete representation, by assigning the burden of the proof to the appellant who provides better conditions for so. There is no barrier for the adoption of such a theory, according to the Brazilian Legal System, in light of basic constitutional grounds of rights and personal guarantees, such as the full defense and the adversary proceeding, the equality and the dignity of the human being. As to define the appellant that provides the best conditions to produce proof, the judge shall have analyze the following issues properly: legal obligations or contractual liabilities imposed to each party, the participation of the appellant in the factum which arises the dispute, the true owner of the proof discussed in the records, easiness to provide probate according to technical, professional, legal or economic reasons, among others. This theory shall be enforced by means of supported judgment, before the commencement of the discovery phase and shall never comply with the reversing of probatio diabolica, that is, the appellant dynamically encumbered shall have the right as well as the opportunity to produce the proof. The theory is fully compatible with the labor disputes, in which, generally, the worker is under a financial hypo sufficiency situation to provide legal proof. Thus, this paper concluded, through the full enforcement of the theory in the lawsuits, that give notice of moral damage, moral harassment, sexual harassment, discrimination in the workplace, accident at work and violation to worker s intimacy or privacy rights, is very difficult or even there is impossibility for the worker to perform the allegations proof before the easiness of employers to show the legacy in business behaviors