Gabarito comentado 2ª fase XXV Exame de Ordem – Direito Administrativo

Gabarito comentado 2ª fase XXV Exame de Ordem – Direito Administrativo

2018-06-11T19:42:04+00:00 Por |Exame de Ordem 2ª Fase|94 Comentários

ORDEM DOS ADVOGADOS DO BRASIL XXV EXAME DE ORDEM UNIFICADO
PROVA PRÁTICO-PROFISSIONAL Aplicada em 10/06/2018    ÁREA: DIREITO ADMINISTRATIVO

Enunciado

Lúcia, servidora pública federal estável, foi demitida do cargo que ocupava, após processo administrativo disciplinar
pelo rito sumário, sob o fundamento de abandono de cargo, em razão de haver se ausentado do serviço por mais de
trinta dias consecutivos, no período entre 15/02/2017 e 05/04/2017, sendo certo que a penalidade foi aplicada em
10/05/2017, pelo Ministro de Estado competente para tanto.
Inconformada, Lúcia buscou assessoria jurídica, na data de hoje, à qual informou que jamais teve a intenção de
abandonar o cargo, tanto que, em 20/08/2016, formalizou pedido de licença por motivo de afastamento de seu
cônjuge, Antônio, professor concursado de uma universidade pública federal, que, no interesse da Administração, foi
deslocado para cursar pós-doutorado na Alemanha, a ser iniciado em 20/01/2017. Esclareceu que, apesar de
insistentes tentativas de obter um pronunciamento por parte do órgão competente para a apreciação de seu pedido
de licença, não obteve qualquer resposta.
A servidora narrou que, com o início do ano letivo na Alemanha, em 15/02/2017, viu-se compelida a se ausentar
fisicamente do país, com vistas a proteger a unidade familiar, considerando que possui dois filhos pequenos com
Antônio, que já estavam matriculados em uma escola na cidade em que o cônjuge cursaria o pós-doutorado.
Lúcia acrescenta que comunicou formalmente aos seus superiores o novo endereço e telefones de contato, mas que
foi surpreendida quando uma antiga colega de trabalho lhe informou a portaria contendo a sua demissão, sem que
qualquer notificação acerca da existência de processo administrativo disciplinar lhe tivesse sido anteriormente
remetida.
Ao buscar os respectivos autos, Lúcia verificou que o processo consistia apenas de portaria inaugural, constituindo a
comissão processante, composta por dois servidores ocupantes de cargo efetivo, certo que um deles ainda estava
em estágio probatório. A comissão atestou o não comparecimento da servidora no mencionado período e, ato
contínuo, elaborou um relatório concluindo pela aplicação da pena de demissão, sem que tivesse sido promovida
sua notificação ou a nomeação de qualquer pessoa que pudesse realizar sua defesa.
Considerando que Lúcia já retornou definitivamente com sua família ao Brasil e que não pretende obter indenização
pelo período em que não trabalhou, bem como que você é o(a) advogado(a) por ela consultado, na data de hoje,
redija a peça para a defesa dos interesses de sua cliente, com indicação de todos os fundamentos jurídicos
pertinentes. (Valor: 5,00)
Obs.: a peça deve abranger todos os fundamentos de Direito que possam ser utilizados para dar respaldo à
pretensão. A simples menção ou transcrição do dispositivo legal não confere pontuação.

 

Curso OAB

Gabarito Comentado

A. Ausência de animus abandonandi OU do elemento subjetivo OU da intenção de Lúcia de abandonar o cargo, na
forma do Art. 140, inciso II, da Lei nº 8.112/90, diante do pedido de licença por motivo de afastamento do
cônjuge (Art. 84, da Lei nº 8.112/90), que não foi apreciado pela Administração, a caracterizar, inclusive, abuso de
direito, em decorrência da omissão administrativa.
B. Proteção à família, consagrada no Art. 226 da CRFB/88;
C. Violação ao princípio do devido processo legal OU dos princípios da ampla defesa e do contraditório, previstos
respectivamente no Art. 5º, incisos LIV OU LV, pois:
C1. Deveria ter sido realizada a devida indiciação de Lúcia, com a sua citação para apresentação de defesa, na
forma do Art. 133, § 2º c/c o Art. 163, ambos da Lei nº 8.112/90, bem como nomeado defensor dativo nas
hipóteses de ausência de manifestação da indiciada, consoante o Art. 164, da Lei nº 8.112/90;
C2. A Comissão processante deveria ser composta por dois servidores estáveis, como se depreende do Art. 133,
inciso I, da Lei nº 8112/90, aplicável ao abandono de cargo, por força do Art. 140, da Lei nº 8.112/90.
Ao final, deve ser formulado pedido de procedência, para que seja anulada a demissão de Lúcia, com a sua
reintegração no cargo.
Ademais, devem ser expressamente requeridas a citação do réu, a produção de provas, especificamente a juntada
dos documentos acostados à inicial; a opção do autor pela realização ou não da audiência de conciliação, a
condenação em custas e honorários; e o valor da causa.
Arremata a peça a indicação de local, data, assina

Assinatura do advogado e o número de sua inscrição na OAB.

Fonte: FGV

 

Sobre o Autor:

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