The National Institute of Social Welfare will grant disability retirement to an intern of a company that had the same working hours of other employees and also overtime. The Special Civil Court of the city of Americana (SP) has determined to grant the benefit by understanding that the fulfillment of the working day, "in addition to the non eventuality of work, payment consistent with employee status and the legal subordination to the company, feature typical work contract, and not simple internship program".
 

The intern that will receive the benefit was a college student of Mechanical Engineering and signed an internship contract with a technology company. However, he started working in the quality sector and not in the mechanics sector. Besides fulfilling the same working hours of other employees and overtime, he earned the same wages.

In 2006, he was victim of an automobile accident that made him unable to perform any occupation. After suffering the accident, the intern filed a petition for administrative incapacity, which was rejected by the INSS on the grounds of lack of evidence of the condition of insured.

According to the law, to grant disability retirement, the applicant must meet certain conditions, including being registered in the Social Security and be considered disabled, totally and definitively to work. In addition, the law provides an increase of 25% to the value of the monthly income from retirement when the beneficiary requires continued assistance of another person.

Federal Judge Marilaine Almeida Santos, who issued the decision in October last year, as the intern worked eight hours a day and 44 hours per week, his situation was analogous to the employee. "It is noteworthy that the fulfillment of long working journey compromises student’s performance, disrespecting the main purpose of the internship, which is experiencing real situations in the work environment in a specific area, with no impairment of technical training," said the judge.

The distortion of the internship program characteristics, she said, proved the quality of compulsory insured of the General Social Welfare Policy, in the condition of employee.

The fact that the company would never have collected social contributions payable in the period did not remove the intern’s rights, considering that it is the obligation of the employer to collect contributions on the wages paid to the employee. "The applicant should not be harmed as a result of fraud and failure of his employer regarding the contractual nature and the corresponding obligation to make the payments," said the judge. She decided that the INSS must grant disability retirement with additional 25% on income within 30 days.

Fonte: Conjur