Administrative – Defense Syndication Fouls
Ilmo. Mr. President of the Syndication Committee established by the Chief Investigator of IPSEMG on May 30, 20xx.
Disciplinary Administrative Inquiry No. 0xx / 20xx.
xxxxxxxxxxxxxx , civil servant occupying the effective position of Nursing Assistant, based in the Nursing Division, masp xxxxxxxxxx, comes by his undersigned dated attorney to present DEFENSE , for the issues of fact and of lawexplainedbelow.
Preliminarily, it informs the timeliness of the present piece, since the notification for presentation of written defense was received on 10/05/20xx, with the ten-day period provided for in art. 225 of the Statute of the Public Servant of Minas Gerais (Law nº 869/1952), which leads us to the final term on 10/16/20xx, Monday. This is because the general rule for counting deadlines in accordance with the Civil Procedure Code (art. 184), which determines the exclusion of the first day and inclusion of the last, with the final term falling on a Sunday, 10/15/20xx, not useful, which brings us to 16/10 / 20xx.
OF THE ILLEGAL PRETENSE
The aforementioned Server was indicted, pursuant to the Minutes of the closing of the investigative works, for having, in theory, violated the provisions of item I, art. 216, of Law No. 869/52 (attendance), subject to the suspension penalty provided for in item IV, art. 246 (recidivism), of the same norm.
On 05/30/20xx, Disciplinary Administrative Inquiry No. 0xx / 200xx (page 13) is established, with the objective of investigating irregular functional conduct attributed to the Employee in question, due to missing work , which was typified by the Inquiring Committee in the aforementioned terms, in compliance with the President’s order dated 05/19/20xx. Such dispatch (page 11) was motivated by the occurrence reports attached to pages 05/03 and 10. Such occurrences account for absences from work on 04, 30 and 31/01 / 20xx, 03/02 / 20xx, 03/05 / 20xx and an undated event.
To classify as non-frequent a server that has 4 absences in the period of 7 months (November / 20xx to May / 20xx), in other words, 4 absences in more than 210 working days, applying a penalty, is, at least, unfair, besides to violate the legal principles of reasonableness and proportionality.
Giovana Harue Jojima Tavarnaro, in the article Principles of Administrative Procedure, available at http://kplus.cosmo.com.br /materia.asp?co=104&rv=Direito (consulted on 21/09/2006), deals with the principle of reasonableness :
It is stated with this principle that the Administration, when acting in the exercise of discretion, will have to obey criteria acceptable from a rational point of view, in line with the normal sense of people balanced and respectful of the purposes that presided over the granting of the competence exercised.
The same author indicates in the aforementioned article, on the Principle of Proportionality:
The principle of proportionality aims to prevent unreasonable excesses, by checking the compatibility between the means and the purposes of administrative action, to avoid unnecessary or abusive restrictions.
Thus, the aim is to match the means and ends, prohibiting the imposition of obligations, restrictions and sanctions to a greater extent than those strictly necessary to serve the public interest.
In the case in question, there was not a minimum of common sense, not only for classifying as a non-frequent Server who has only 4 absences in the period of 210 days, but also for the system of the complaint.
Let’s look at the occurrence form (page 03). It remains clearly indicated that:
“We emphasize that this notification does not imply an administrative penalty, however, it will be filed in the sector and in the case of 02 (two) consecutive occurrences, we will take action with the Administrative Internal Affairs.”
Unreasonable! Disproportionate! Inhuman! Absurd!
It was not enough the excess in reporting to the Administrative Corregedoria who has 2 (two !!!) occurrences, still uses threat! What level of management is this admitted by an Institute who has invested in the qualification and training of its managers and employees ?! Two occurrences, independent of time lapse between one another, independent of the service time of the server. Two occurrences are a reason to report to the Internal Affairs! Cruel.
There is no information in the process about a request for intervention by the Human Resources area for conflict resolution and consultancy. Nothing! Only the dry threat of referral to the Internal Affairs Unit, a unit whose punitive intervention must be the last of the last options, in an institution that values human development policy.
There is no news that another unit of the Institute reports a server to Corregedoria for two occurrences of absence. Nursing assistants are being savagely penalized, with such a practice, and the isonomic treatment among civil servants of the same organ is injured.
In addition, we verify from the testimonies of the witnesses, that he is an attentive, beloved and fulfilling of his duties.
So-and-so, as testimony on pages 46/47, she informs that she is the coordinator of the Syndicate in 20xx and that he has a good relationship with colleagues, managers and patients. He adds that the Defendant is punctual and assiduous .
On page 50, the nurse Beltrana, coordinator of the server in the period from 20xx to 20xx, reports being the same calm, having never received a complaint against her disadvantage.
A copy of the previous Inquiry was enclosed, involving the aforementioned Server, which appears on page 59 that he always warns of his absences or presents a medical certificate and is praised by the patients.
Finally, demonstrating the excess of rigor with which nursing assistants are treated, which generates a high level of stress, with consequent occurrences of absences, in their testimony to page. 69, the Trade Union informs that, when it feels sick, it does not seek the Institute’s emergency service (SMU), because it is aware of a request from the Nursing Division so that medical certificates are not granted to the servers allocated in that Division.
As it turns out, this is interference, unreasonable excess on the part of the coordinators. De-motivating situations, which cause stress, which is well known, increases absenteeism, absences from work.
Injustice! This is what will be promoted if the Syndication Commission carries out this Inquiry, imposing sanctions on those who are victims of interference, understanding that only 4 occurrences are sufficient reason for such a drastic attitude, that is, the penalty of the Server.
For all of the above, the absentee’s absolution of the Server is requested, filing the gift made, as there remains an unreasonable and disproportionate excess on the part of the coordinators of the unit in which the Server is assigned, which proves the constant threat of the term of office. occurrences, transcribed by us .
This Defender warns that special attention should be given to information regarding the refusal to grant certificates by SMU doctors to servers assigned to the Nursing Division, at the request of the Head of this Unit, as it constitutes disrespect for the ethical principles listed in items I, II, IV , V and VIII, of art. 1, and the fundamental ethical duties set out in items I, II, XVIII and XIX, of art. 5, all of the Code of Ethical Conduct for Public Servants and Senior State Administration, a conduct liable to punishment by this Internal Affairs Department.