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Date: April 16, 2019
Posted by: CPDMA Team

Few judges have applied the reform rule for dismissal of actions

Provided for in the labor reform, the possibility of dismissing cases, in the payment (execution) phase, due to lack of movement is still little used by judges. In only two cases, after the entry into force of Law No. 13,467, of 2017, the so-called intercurrent prescription was applied, according to a survey carried out by Miceli Sociedade de Advogados. The measure can be adopted when the author of an action is without moving it for two years.

The office located only one decision in Rio de Janeiro and another in Goiás. "The subject is very new and is still being used little in the Labor Court", says labor lawyer José Luiz Malta, from Miceli Sociedade de Advogados.

Another reason for the lack of adherence to the practice, according to lawyers, would be the edition, by the Internal Affairs Office of the Labor Court, of Recommendation No. 3 - which serves as a guide for judges. Article 3 establishes that this statute of limitations could only begin to run from November 11, 2017, the day on which the labor reform law came into force. That is, this two-year term would only expire in November of this year.

The intercurrent prescription is generally provided for in article 11-A of Law No. 13,467 of 2017. Before, there was no provision in the Consolidation of Labor Laws (CLT). There were only divergent understandings on the subject. In the Federal Supreme Court (STF), the Precedent nº 327, edited in 1963, admits the intercurrent prescription in the Labor Court. However, in 1980, the Superior Labor Court (TST) edited Precedent nº 114, maintained in 2003, which excludes its application in the Labor Court.

The possibility, now provided for in the CLT, worries workers' lawyers. They allege that the author of a process can take years to have rights recognized by the Justice and not receive anything if he does not move him, after the decision, in search of the debtor's assets. Already company lawyers believe that the measure gives more security because there is a deadline for extinction of the charge.

Currently, 42% of the cases judged by the Labor Court are not finalized due to non-payment or location of debtors' assets. The congestion charge appears in the report Justiça em Números 2017 (base year 2016), released by the National Council of Justice (CNJ).

The decision of Rio de Janeiro was given by Judge Cláudia Siqueira da Silva Lopes, of the 59th Labor Court in the capital. It decreed the intercurrent statute of limitations in a lawsuit filed by a female worker against Sanear Engenharia e Construção (case no. 0001453-78.2012.5.01.0059).

The case was definitively shelved on February 21. In the order, the judge states that, on September 4, 2015, the "author party was notified to come with the settlement, under penalty of incurring the intercurrent statute of limitations". As there was no manifestation, the judge declared the process prescribed.

Labor lawyer José Luiz Malta, who advised Sanear Engenharia, says that the worker was summoned, on several occasions, to pay the liquidation and proceed with the execution, but did not do so in more than two years. "So we request that the intercurrent prescription be decreed, based on the new article 11-A of the CLT, which was accepted by the judge", he says.

The new provision to decree intercurrent prescription in labor proceedings, according to Malta, brings more legal certainty for employers. "Without the intercurrent prescription, the companies are at the mercy of the claimant to move the execution indefinitely. And in that time, interest and monetary correction are running for the period that was inert", he says.

In Goiás, the 2nd Panel of the Regional Labor Court (TRT) of the 18th Region also followed this path. According to the rapporteur, judge Geraldo Rodrigues do Nascimento, the application of the intercurrent prescription in the Labor Court was controversial before the entry into force of Law No. 13,467, with divergent precedents in the TST and Supreme.

However, adds the judge in the decision, the TRT of Goiás had also pacified its understanding on the subject with Precedent No.

The lawsuit was filed by a worker against the Buriti American Beef butcher. In the decision, the magistrate states that the execution had been stopped due to inertia of the creditor since 2010. In April 2018, the judge of first instance declared the intercurrent statute of limitations. Then, the worker appealed against the measure, which was denied by the TRT, when deciding that it was time-barred by not having procedural movement for eight years.

According to lawyer Juliana Bracks, from Bracks Advogados Associados, before the reform, some labor judges had been applying the intercurrent prescription, even with the contrary precedent of the TST. But now there is no doubt that it can be used. However, this statute of limitations declared before November 11, 2019 can be questioned, adds the lawyer, since article 3 of Recommendation No.

Source: Adriana Aguiar via Valor Econômico.

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