A proibição da revista íntima no ambiente de trabalho como garantia do direito fundamental à intimidade

Abstract

The employer's supervisory power characterizes one of the expressions of the employment power linked to the continuous monitoring of the provision of services in the work environment. Based on this prerogative, intimate search about the personnel and the personal objects of the employees are adopted to guarantee internal surveillance. The discussion on the topic of “intimate search” in the workplace took on a new shape with the paradigm set by Subsection I Specialized in Individual Disputes (SBDI I) of the Superior Labor Court (TST) when signing a legal thesis that the search procedure carried out in the personal belongings of all employees it is contained within the scope of the supervisory power, when adopted in na indiscriminate manner and without physical contact. However, the aforementioned statement of the positive right concerning the intimate search, present in Art. 373-A, VI, of the Labor Relations Code (CLT) and in Law No. 13.271 / 2016, encourages reassessment by the Science of Law. The object of the dissertation is to evaluate the constitutional limits of the intimate search in the workplace as a guarantee of the fundamental right to intimacy. Methodologically, legal bibliographic research and the deductive method are adopted it. The legal analysis was carried out: (1) based on the doctrine on the protection of privacy in the field of fundamental rights and in the analysis of the legal system of the country; and, (2) with respect to the deductive examination, from a major premise ‒ the constitutional and infraconstitutional rules ‒ to a minor premise ‒ the specific case of the analysis of the intimate search in the workplace. In chapter one, some premises will be stipulated from the study of the constitutionalization of Labor Law; the legal effectiveness of fundamental rights in relations between individuals, and, still, of the proportionality rule in Robert Alexy's conception. Given these assumptions, in the second chapter will approach the evolution of the fundamental right to privacy and the supervisory power in the workplace in the exercise of the employer's property right, to, in the end, investigate the intimate search about the person and the personal objects of the workers. In chapter three, it will examine the social function of property and the company, as well as the economic, social and environmental aspects (triple botton line), in which the figure of the worker presents itself as an important stakeholder worthy of legal protection in the dynamics of business activity. It is believed that it is possible to affirm that disproportionate searches in the person or personal objects in the workplace that violate the fundamental right to privacy represent intimate search.