Acórdão nº 01354/16.2BEBRG de Tribunal Central Administrativo Norte, 08 de Janeiro de 2021
Magistrado Responsável: | Maria Fernanda Antunes Aparício Duarte Brandão |
Data da Resolução: | 08 de Janeiro de 2021 |
Emissor: | Tribunal Central Administrativo Norte |
Acordam, em conferência, na secção de contencioso administrativo do Tribunal Central Administrativo Norte: RELATÓRIO O., residente na Rua (…), instaurou acção administrativa de condenação à prática de acto devido contra o Município de (...), pedindo “(…) ser julgada procedente, por provada, a presente ação de impugnação da regularidade e ilicitude do despedimento e, consequentemente, a) Ser declarada a ilicitude do despedimento do Autor; b) Ser condenada a ré a pagar à autora indemnização por incumprimento do aviso prévio nos termos do art. 344º nº 2 in fine do ct. Exarado no presente articulado; c) ser condenada a Ré pela indemnização em substituição da reintegração (nº 1 do art. 391º do CT); d) Ser condenada a Ré a pagar à autora as retribuições que deixou de auferir desde Dezembro de 2015 até ao trânsito em julgado da sentença, sem prejuízo do disposto no art. 98º-N, nºs 1 a 3 do CT); e) Ser condenada a indemnizar a Autora por todos os danos causados patrimoniais e não patrimoniais; f) Ser julgada procedente, por provada, a reconvenção e, consequentemente, ser a Ré condenada a pagar: ff) a quantia de €10.000,00, a título de indemnização por danos não patrimoniais; fff) ser a ré condenada em custas, sem prejuízo do benefício do apoio jurídico concedido ao Autor”.
Por sentença proferida pelo TAF de Braga foi julgada a acção improcedente e absolvida a Entidade Demandada dos pedidos.
Desta vem interposto recurso.
Alegando, a Autora formulou as seguintes conclusões: A. O presente recurso vem interposto da sentença do Tribunal Administrativo e Fiscal de Braga, de 16.01.2020, que julgou a acção administrativa supra mencionada totalmente improcedente, e, consequentemente, absolveu a Entidade Demandada dos pedidos.
B. A sentença recorrida considerou provada a seguinte matéria de facto: C. Em 28 de Outubro, a Autora e a Entidade Demandada celebraram um acordo, denominado Contrato - Inserção, o qual se dá aqui por inteiramente reproduzido; D. Pelo Ofício n° DRH-398, datado de 30 de Novembro de 2015, com o "Assunto: Cessação e Resolução do Contrato Emprego de Inserção", a Entidade Demandada comunicou à Autora" (...) a cessação do contrato, no âmbito da Medida Emprego Inserção", a Entidade Demandada comunicou à Autora" (...) a cessação do contrato, no âmbito da Medida Emprego Inserção, celebrado a 30 de Outubro de 2015, com este Município, com base do n° 3, da Cláusula 7°. Esta cessação deverá produzir efeitos a partir de 30 de Novembro de 2015 (...)"; E. Em 19 de Janeiro de 2016, a Autora solicitou à Entidade Demandada "(...) informações inerentes à cessação e resolução do contrato (...)"; F. Pelo Ofício n° DRH-13, datado de 27 de Janeiro de 2016, com o "Assunto: Resposta a solicitação", a Entidade Demandada comunicou à Autora "(...) reiteramos o nosso ofício DRH-398, de 30.11.2015, com base do n° 3, da cláusula 7°, designadamente porque foram violados os deveres a que estão obrigados os beneficiários do Rendimento Social de Inserção e outros desempregados elegíveis, no âmbito do Contrato Emprego - Inserção (...)"; G. Em 26 de Janeiro de 2016, a Autora interpôs acção de impugnação judicial, regulação e licitude de despedimento, no Tribunal Judicial da Comarca de Braga, Juízo do Trabalho de Barcelos, a qual correu termos sob o n° 201/16.0T8BCL; H. Em 9 de Maio de 2016, na acção referida em e), foi proferida sentença, que transitou em julgado em 6 de Julho de 2016; I. Em 14 de Julho de 2016, a Autora interpôs a presente acção.
J. A sentença recorrida não se pronunciou sobre as questões invocadas pela ora Recorrente, pelas quais deveria, tendo o tribunal formado a sua convicção com base nos documentos constantes dos autos, bem como no acordo existente entre as parte.
K. A recorrente, intentou acção de condenação à prática de atos administrativos devidos, nos termos da lei ou de vínculo contratualmente assumido, como dispõe o artigo 37° n° 1 alínea b) do CPTA.
L. No entanto, a recorrida, veio em sede de contestação, deduzir exceção de...
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