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The Diversion or Accumulation of Function Is Labor Fraud and Can Justify Indirect Dismissal, Requiring the Employer to Pay Retroactive Salary Differences and Indemnities.
The Labor Court has consolidated the understanding that diversion and accumulation of function cannot be treated as simple internal adjustments, but as contractual frauds. According to labor lawyer Gabriel Pacheco, such practices allow the employee to request indirect dismissal — terminating the contract due to the employer’s fault and guaranteeing all amounts as if they had been dismissed without just cause.
In addition, the company may be ordered to pay retroactive salary differences from the first day the worker was subjected to the irregular function.
This decision has a direct impact on thousands of Brazilian workers.
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Common situations, such as cashiers who also restock or drivers who accumulate loading and unloading activities, are no longer seen as “adaptations” and are now judicially recognized as punishable employer abuses.
What Characterizes Diversion of Function
Diversion of function occurs when the employee is hired for one activity but actually performs another entirely different one, without receiving the corresponding salary.
An administrative assistant who starts acting as a commercial attendant or a computer technician required to perform electrical maintenance are clear examples of this practice.
For the Justice, this conduct constitutes fraud, as the company benefits from a more qualified function while paying less than what is due.
In addition to indirect dismissal, the worker is entitled to retroactive salary differences, recalculated from the beginning of the execution of the diverted activities.
What Is Accumulation of Function
Accumulation occurs when the employee continues to perform their contracted function but also receives assignments from another function, without additional compensation.
This is common among cleaning assistants who also handle loading and unloading or cashiers who take on stockist duties.
In these cases, the employee does not cease to perform their original activity but ends up performing two functions for the price of one.
According to Gabriel Pacheco, this is an abusive practice that generates the employer’s unjust enrichment at the expense of the worker.
The Support of the CLT and Labor Justice
The article 483 of the CLT supports the request for indirect dismissal whenever the employer commits a serious offense, such as the diversion or accumulation of functions.
Thus, the worker can terminate the employment relationship and still receive prior notice, a 40% fine on the FGTS, unemployment insurance (when applicable) and all termination amounts.
More than that: Justice can order the employer to pay salary differences from the first day of the fraud, in addition to court costs and fees.
In other words, what the employer tries to save unreasonably turns into multiplied losses.
Impact on Employees and Employers
These decisions make it clear that diversion and accumulation of function are not “contractual flexibility,” but labor fraud.
For the worker, it is essential to correctly identify the situation faced: while diversion replaces the original function with another, accumulation adds tasks without proportional remuneration.
For companies, the message is clear: reducing costs at the expense of employee overload or diversion can lead to heavy penalties and damage to reputation.
According to Gabriel Pacheco, the practice is recurring, but increasingly fought in court, which considers the measure a violation of contractual balance and the worker’s dignity.
The position of the Labor Justice confirms that diversion and accumulation of function are illegal and punishable practices.
Workers facing this scenario have legal support to seek indirect dismissal and all corresponding amounts.
For employers, the guidance is clear: adjust the function to the contract or adjust the contract to the function — any “shortcut” will be considered fraud.
And you, have you witnessed or faced cases of diversion or accumulation of function at work? Do you think it’s fair that Justice treats these situations as fraud with the right to indirect dismissal? Share your opinion in the comments — we want to hear your experience.
Eu trabalho em portaria de condomínio em Itabuna Bahia, minha escala é 12 por 36 das 18 as 06 da manhã sem intervalo e a empresa soma 105 horas noturna, sabe me dizer se essa quantidade de horas noturna está correto?
Olha, eu vivo isso, na minha carteira, está balconista de padaria, só que faço ,outras funções, como reposição de mercadorias, limpo prateleiras, vejo validade de produto, enfim faço de tudo
Adeus as pequenas empresas.