As a way of pacifying the jurisprudence consolidated by the TST, the theses established must be observed by the Regional Labor Courts.
In this vein, Resolution 224/2024 added provisions to IN 40/2016 of the TST , providing for the possibility of an Internal Appeal against decisions of the Regional Labor Courts that deny a Review Appeal in cases where the judgment in question is based on decisions made by the TST in the judgment of IRR, IRDR or IAC. In other words, in these cases, the Superior Labor Court will no longer be able to hear an Interlocutory Appeal (AIRR).
The Regional Courts (via Internal Appeal) will have to align their understanding in line with the precepts of the Superior Labor Court, guaranteeing more efficiency and effectiveness to the appeals system.
Among the binding theses approved, the final wording of which is yet to be published by the TST, are, among others:
- Impossibility of paying FGTS directly to the employee
In cases where the employee files a labor claim seeking the payment of the FGTS and the respective fine, the amounts must be deposited in a linked account and not paid directly to the worker.
- Overtime break for women
Article 384 of the CLT was accepted by the Federal Constitution of 1988 and, in the period prior to its repeal by Law No. 13,467/17, overtime is due for failure to observe the break provided for therein, and no minimum overtime is required to characterize the right to the break.
- Fine for late payment of severance pay in the event of indirect termination
Recognition of the indirect termination of the employment contract in court does not rule out the application of the fine in article 477, paragraph 8, of the CLT.
- Dismissal of pregnant employees and union assistance
The validity of the resignation of a pregnant employee, who has the provisional stability provided for in article 10, item II, paragraph “b”, of the Transitional Constitutional Provisions Act (ADCT), is subject to the assistance of the professional union or the competent local authority, under the terms of article 500 of the CLT.
- Party that does not bring witnesses to the hearing
The refusal to postpone the single or pre-trial hearing does not constitute a curtailment of the defense when the party, previously summoned to present a list of witnesses, does not make the list or bring the witnesses spontaneously to the hearing.
- Reversal of just cause for accusation of improbity
The mere unfounded imputation of an act of dishonesty to an employee is not enough to give validity to a dismissal for just cause based on an act of improbity (CLT, art. 482, a), and when reversed in court it constitutes damage in re ipsa, and the employer should be ordered to pay compensation for moral damages (CF, art. 5º X, CLT, art. 223-B and CC, articles 186, 187 and 927).
- Promotion by seniority
Applying the principle of ability to prove, the onus is on the employer to prove that the employee has not met any of the requirements for seniority promotions.
- Toilet and eating area for cleaning and maintenance workers carrying out external activities
The lack of adequate sanitary facilities and a suitable place to eat for employees who carry out external activities of cleaning and conserving public areas authorizes the employer to be ordered to pay compensation for moral damages, since the minimum standards of hygiene and safety at work, which are necessary and required for the working environment, have not been respected (NR-24 of the MTE, CLT, art. 157, Law no. 8.213/91, art. 19, and CF, art. 7, XXII).
- Commissions on canceled sales
Default or cancellation of the purchase by the customer does not authorize the employer to reverse the employee’s commissions.
- Commissions on forward sales
The commissions owed to sales employees as a result of installment sales must be levied on the total value of the transaction, including interest and any financial charges, unless otherwise agreed.
- Moral damage in cash-in-transit
Subjecting unskilled security workers to cash-in-transit entails exposure to a risky situation and constitutes an unlawful act that justifies compensation for moral damages, without the need to prove the psychological distress suffered. Compensation is also due in the case of companies in an economic sector other than finance.
- Lack of annotation on the CTPS
The failure to annotate an employee’s work permit does not, in itself, generate moral damage in re ipsa , so it is necessary to prove embarrassment or damage suffered by the worker to their immaterial assets, under the terms of articles 186 and 927 of the Civil Code.
- Searching bags and belongings
A purely visual search of employees’ belongings, as long as it is carried out in an impersonal, general manner and without physical contact or exposure of the employee to a humiliating and vexatious situation, does not constitute an unlawful act capable of generating compensable moral damage.
- Nature of the cargo transportation contract
The cargo transportation contract, since it is commercial in nature and not service provision, rules out the outsourcing provided for in Precedent No. 331 of the TST, preventing the contracting party from being held vicariously liable.
- Indirect termination for late payment of FGTS
The irregularity in the payment of FGTS deposits reveals non-compliance with a contractual obligation, under the terms of article 483, “d”, of the CLT, which is serious enough to constitute indirect termination of the employment contract, and the immediacy of the employee’s reaction to the breach of contract is unnecessary.
In addition, the TST approved the submission of 14 new issues to the system of Repetitive Review Appeals. The decision was aimed at standardizing case law on recurring issues in the Labor Courts, providing greater predictability and efficiency in the judgment of recurring issues, such as:
- Collection of costs and appeal deposit: validity of the collection of the appeal deposit by a person outside the dispute.
- Disregard of legal personality: application of the greater or lesser theory for the disregard of legal personality in Labor Law is governed by the greater or lesser theory and possible direct and literal violation of the Federal Constitution in this matter for knowledge of the review appeal in the execution phase.
- Classification of the degree of unhealthiness by collective norm: validity of the collective norm that provides for the classification of the degree of unhealthiness.
- Paid weekly rest in the 5X1 system: analogous application of art. 6, sole paragraph, of Law no. 10.101/2000 and the application of TST Precedent no. 146 (double payment), in cases where the paid weekly rest does not coincide with Sunday, every three working weeks.
- Conversion of resignation request into indirect termination: possibility of judicial conversion of resignation request into indirect termination in the event of serious misconduct by the employer (CLT, art. 483).
- Compensation for material damage in a single installment: application of a reduction in the amount of compensation, arbitrated in a single installment, referring to the lifetime pension for permanent incapacity of the employee, due to an accident at work or occupational disease, by virtue of article 950, sole paragraph, of the Civil Code.
- Substitution of the appeal deposit by guarantee insurance or surety bond: term of validity (indefinite, conditioned until the final resolution of the dispute; or fixed term) of the bank guarantee bond or guarantee insurance.
- Subsidiary liability in the faction contract: application of Precedent 331, IV of the TST to the mercantile contract, in the faction modality.
- Intercurrent statute of limitations: incidence of the statute of limitations in relation to executive titles constituted before Law 13,467/2017 (labor reform).
- Suspension of the limitation period under Law 14.010/20: suspension of limitation periods under Law 14.010/2020 and its applicability to Labor Law.
In conclusion, it is worth noting that, for Minister President Minister Aloysio Corrêa da Veiga, the path adopted was historic for the TST, which consolidated its position “as a court of precedents, not of apex”, stating that standardization is necessary to deepen judgments on relevant issues in labor relations. He also added that case law is not watertight(overruling, distinguishing and overriding). ” It can be overcome. But equal cases must be decided equally “.
The topics mentioned above and many others will be the subject of detailed analysis on this blog.