The Full Bench of the Superior Labor Court, in a session held on Monday (24), established legal theses on new issues, in a procedure to reaffirm its jurisprudence. These are matters which, because they have already been settled, have been submitted to the repetitive appeals rite for the definition of a binding legal thesis.

The establishment of qualified precedents has a direct impact on the progress of labor cases, since, once the legal thesis has been defined, there is no longer the possibility of an Interlocutory Appeal in a Review Appeal (AIRR) to the TST on the issue addressed in the incident. In these cases, the party will only be able to file an appeal with the TRT responsible for the decision (a topic already covered in a previous article).

At the same session, approval was given for a list of topics to be sent to the TST’s Full Bench for the opening of repetitive appeals incidents. In these cases, there is disagreement between the panels and the SDI-1 (Sub-section 1 Specialized in Individual Disputes of the TST), which will be resolved by the Full Body of the Court.

The system of reaffirming case law aims to create qualified and binding precedents which, in addition to reinforcing legal certainty, equality and efficiency, optimize the court’s efforts.

For the president of the TST, Minister Aloysio Corrêa da Veiga, the judgments aim to promote stability, coherence and legal certainty in the Labor Courts, avoiding unnecessary litigation and guaranteeing the uniform application of the law in matters that have already been settled. According to the Chief Justice, the system is justified by a “conscious pragmatism” in the face of a massive volume of cases.

Case law has been reaffirmed on issues such as:

• Fine under article 477, paragraph 8, of the CLT.
  The sanction is due in the event that the dismissal for just cause is reversed in court.
  
• Witness.
  Lawsuit brought against the same employer with identical claims. No suspicion.
  
• Working hours.
  Impossibility of controlling external working hours. Employer’s burden of proof.
  
• Amounts overpaid to the executor.
  Return in the execution proceedings. Impossible.
• Attachment of the debtor’s income to pay labor claims.
  Validity.
  
• Material damage.
  Monthly pension. Inability to perform the job. Concause. Amount arbitrated.
  
• Accident at work or occupational disease.
  Compensation for material damage (art. 950 of the Civil Code). Payment in a single installment. The magistrate’s discretion.
  
• Bank employees.
  Profit sharing (PLR). Collective bargaining agreement. Basis for calculation. Inclusion of overtime. Impossible. Variable amount.
  
• Additional hazard pay.
  Aircraft refueling area.
  
• Additional health benefits.
  Artificially cold environment. Thermal recovery interval not granted. Additional pay due.
  
• Outsourcing.
  Provision of services to a plurality of service providers. Circumstance that does not exclude subsidiary liability.
  
• Letter carrier.
  Assault. Moral damage. Risky activity. Employer’s strict liability. Article 927, sole paragraph, of the Brazilian Civil Code.
  
• Additional hazard pay.
  Employee who monitors the refueling of a vehicle by a third party. Undue bonus.
  
• Indirect termination.
  Non-compliance with the intra-day break and lack of overtime pay.
  
• Treasurers.
  Caixa Econômica Federal. Position of trust. Not configured.
  
• Additional hazard pay.
  Forklift refueling. Changing LPG gas cylinder. Habituality. Intermittent exposure.
  
• Social security limbo.
  Moral damage in re ipsa. Configuration. Compensation due.

The following issues will also be standardized by the TST:

• Rito Sumíssimo.
  Limitation of the conviction to the amounts indicated in the initial statement.
  
• Additional hazard pay.
  Use of motorcycle on the job. Article 193, paragraph 4, of the CLT. Regulations. Ordinance No. 1,565/2014 of the Ministry of Labor and Employment.
  
• Oil tanker employees.
  Relay system, under the terms of Law 5.811/1972. Inter-day break. Applicability of article 66 of the CLT to the category. Provision in collective bargaining agreement. Matter covered by IRDR No. 5 of the TRT of the 20th Region.
  
• Compensation for moral damages.
  Repeated wage delays.
  
• Enforcement.
  Court-approved agreement. Penalty clause. Insignificant delay in the payment of an obligation set out in the agreement. Exclusion of penalty. Impossible. Res judicata. Violation. Equitable reduction of the penalty. Possibility. Principles of proportionality and reasonableness.
  
• Additional hazard pay.
  Flammable gas. Piping. NR-16 of the MTE. Equalization.
  
• Class action.
  Determination of individualization of settlement and enforcement of sentence.
  
• Class action.
  Individual enforcement. Prescription.
  
• Moral damage.
  Compensation. Sanitary barrier. Change of uniform. Circulation in underwear.
  
• Banco Santander.
  Special bonus paid at the employer’s discretion. Lack of objective criteria. Principle of equality.
• Confession.
  Absence of the party at the pre-trial hearing. Subpoena of lawyer(s).
  
• Truck driver.
  Remuneration for commissions on the load transported. Calculation of overtime. TST Precedent No. 340.
  
• Rejection of personal testimony.
  The magistrate’s discretion. Curtailment of defense.
  
• Prescription.
  Declaration ex officio. Impossible.
  
• Mixed working hours.
  Precedent 60, II, of the TST applies. Additional night work. Appropriate.
  
• Transfer bonus.
  Temporary nature. Time criterion. Insufficiency.
  
• Free justice.
  Trade union. Procedural substitute. Proof of economic hardship. Necessary. TST Precedent 463, II.
  
• Employee hired in Brazil to work on an international cruise ship.
  Applicable legislation.
  
• “Family Social Benefit”.
  Sponsorship through a compulsory payment. Provided for in collective bargaining agreement. Validity. Subject of IRDR No. 24 of the TRT of the 18th Region.
  
• Private entity.
  Interest and monetary correction. Time of determination. ADCs no. 58 and no. 59. Decision handed down in the knowledge phase that postpones the definition of the criteria for updating the labor claim to the execution phase.
  
• Dismissal for just cause.
  Proportional vacation. Proportional thirteenth salary. Incidence of TST Precedent No. 171. Undue amounts.
  
• Hazardousduty bonus.
  Watchman’s job. Law no. 12.740/2012. Article 193, II, of the CLT. Ordinance No. 1.885/2013 of the Ministry of Labor and Employment.
• Seniority promotions.
  Sufficiency of the objective time requirement. Not subject to other subjective requirements.
  
• Effective exercise of teaching activities.
  Failure to meet the formal requirements of article 317 of the CLT. Qualification as a teacher due.
  
• Disregard of legal personality.
  Failure to initiate an incident. Circumvention of defense. Nullity of asset constriction acts.
  
• COVID-19 pandemic.
  Commitment not to resign. Unilateral termination of the employment contract after the expiry of the commitment period. Discussion about the nullity of the dismissal.
  
• Empresa Brasileira de Correios e Telégrafos – ECT.
  Vacation bonus on cash allowance. Change in calculation method. Circular memo no. 2.316/2016 – GPAR/CEGEP. Employment contract. Repercussion.
  
• Caixa Econômica Federal (CEF).
  Cash break bonus. Simultaneous receipt with position of trust. Impossible. Normative prohibition. Subject of IRDR No. 16 of the TRT of the 1st Region.
  
• Employer’s social security contribution.
  Social security exemption scheme. Law 12.546/2011. Application to condemnatory or homologatory decisions handed down by the Labor Courts.
  
• Banco Santander.
  Special bonus paid at the employer’s discretion. Lack of objective criteria. Principle of equality.
  
• Additional health benefits.
  Garbage collection in a residential condominium.
  
• Lawfulness of the employer’s control of bathroom use during working hours.
  Configuration of moral damages in re ipsa to the employee.

The above topics will be covered in new articles by the CPDMA Labor team.

Labor Law | CPDMA Team