Shirley Escobar considered that there is no employment relationship due to the peculiarities of innovation. 

Judge Shirley Aparecida de Souza Lobo Escobar, from the 37th Labor Court of São Paulo, dismissed the public civil action filed by the Public Ministry of Labor that asked for the recognition of an employment relationship between iFood and delivery people who use the platform. The request was also dismissed in relation to Rapiddo, a company of the same group.

In the decision on iFood, the judge considered that the requirements for characterizing the employment relationship of personality, subordination and continuity are not present, “due to the peculiarities of the form of work organization which, in fact, is innovative and only possible through technology”.

The Public Ministry of Labor requested, in addition to hiring the delivery men, that the companies be ordered to pay compensation for collective moral damage in the amount of not less than R$ 24 million, the equivalent of 5% on the companies' estimated gross revenue. The request was also denied.

The motor-freighter, says the judge, “owns the means of production” and this distances him from the figure of the employee who provides his services “using the employer's means of production and brings him closer to the figure of self-employed. If you own more than one vehicle, or exploit the vehicle by putting another person to work, you will be closer to the figure of an employer”.

The MPT claimed that the delivery man is subject to a kind of “digital servitude”, a qualification removed by the magistrate. According to her, “the employee can work 16 hours without receiving a single overtime. Just keep two jobs as allowed by law.”

Thus, ” it was demonstrated that the worker makes himself available to work on the day he chooses to work, starting and ending the journey at the moment he decides, choosing the delivery he wants to make and choosing which application he will do it for, since he can put himself at available, at the same time, for as many applications as you want”.

The magistrate states that “in the face of the separation of powers, it is not up to the Judiciary to expand an institute in order to reach those who in fact and clearly are outside it and are not unprotected. The improvement of this protection must be the subject of legislative activity”.

The judge recognized the legality of the business model analyzed with the consequent recognition that the delivery of services by couriers, as a rule, occurs in the form of autonomous work.

Thus, he states, “the principle of human dignity and the social values of work and free enterprise have been guaranteed maximum effectiveness. We emphasize the expression “as a rule”, because, since the employment contract is a reality contract, it can always be the object of fulfillment of the requirements in the course of the execution of a contract that began as an autonomous provision of services, and such situation must be analyzed in each specific case”.

The magistrate also considered that there is no unfair competition or social dumping due to the model adopted by iFood and Rapiddo, as stated by the MPT.

By means of a note, the MPT in São Paulo stated that it will appeal the decision since: “the thesis defended in the process is robustly established in an inspection report and infraction notices drawn up by the Ministry of Economy, ministerial diligences, testimonies and evidence produced in judgment".

The case is being processed under the number 1000100-78.2019.5.02.0037.

Source: Kalleo Coura via Jota.