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By Ed Taylor
Dec. 14— A series of rulings by Brazilian labor courts have upheld the right of companies to prohibit the use of mobile phones by employees during working hours. The cases have involved situations where employees were terminated or suffered other penalties for using banned mobile phones and then appealed to labor courts. The courts have been unanimous in rulings dealing with such diverse issues as employee safety and industrial espionage.
In one case appealed to the superior labor court, an employee suffered a serious injury attempting to retrieve a mobile phone that had fallen on an industrial press. The employee sued the employer seeking damages and a lifetime pension. The company defended itself on the grounds that its ban on the use of mobile phones was based on safety concerns. In the court's unanimous ruling in favor of the company, justice Maria de Assis Calsing said that the employee's own statements indicated that “if it were not for her imprudent action, the accident would not have happened. In the face of these facts, despite the regrettable accident which occurred and the consequences which will follow her for all of her life, the only conclusion possible is that the guilt belongs only to the victim.”
In another case, a regional labor court rejected an employee lawsuit for moral damages in a case where the employee was ordered by company security guards to show pictures that he had taken inside the firm's production area. The company's argument, accepted by the court, was that the employee had used his mobile phone to photograph areas in which cameras were prohibited. According to the court, the employee's actions had provoked “a legitimate suspicion of industrial espionage.”
Even in more normal situations, the courts have ruled on the side of mobile phone bans established by companies.
The superior labor court in November maintained the termination of a call center employee who took his mobile phone to his work station despite a company ban. The court held that by ignoring the company's policy the employee had demonstrated “insubordination and lack of discipline.”
Attorneys told Bloomberg BNA that they have instructed companies to link their mobile phone bans to safety concerns.
“The cell phone can generate lack of attention which can put at risk the lives of the worker and other persons,” said attorney Tulio Massoni of the law firm Romar, Massoni and Lobo Advogados.
Massoni advises employers to protect themselves by including in employee contracts a clause establishing the company's policy banning personal mobile phones. The policy should also cover employer-provided mobile phones, Massoni said.
“There should be a requirement that company cell phones are strictly for professional use and can be monitored, and when the work contract expires the phones must be returned,” Massoni said.
Attorney Jose Carlos Wahle of the firm Veirano Advogados told Bloomberg BNA that some industrial sectors have included mobile phone bans in collective bargaining agreements on safety grounds.
To contact the reporter on this story: Ed Taylor in Rio de Janeiro at firstname.lastname@example.org
To contact the editor responsible for this story: Rick Vollmar at email@example.com
For more information on Brazilian HR law and regulation, see the Brazil primer.
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