The Full Bench of the Superior Labor Court, in a session held this Monday (24), established legal theses on new topics through a procedure of reaffirming its jurisprudence. These are matters that, as they are already settled, were submitted to the repetitive appeals procedure for the definition of binding legal theses.

The establishment of qualified precedents has a direct impact on the progress of labor lawsuits, as once the legal thesis is defined, it is no longer possible to file an Interlocutory Appeal in an Appeal for Review (AIRR) with the Superior Labor Court on the subject addressed in the incident. In such cases, the party may only file an Appeal with the Regional Labor Court (TRT) responsible for the decision (a topic previously addressed in an earlier article).

In the same session, the referral to the Full Bench of the Superior Labor Court of a list of topics for the initiation of repetitive appeals incidents was approved. In these cases, there are divergences between the Panels and the SDI-1 (Subsection 1 Specialized in Individual Disputes of the Superior Labor Court), which will be resolved by the Court's Full Bench.

The system of reaffirming jurisprudence aims at the formation of qualified and mandatory precedents that, in addition to strengthening legal certainty, equality, and efficiency, optimize the efforts of the Court.

According to the President of the Superior Labor Court, Minister Aloysio Corrêa da Veiga, the rulings aim to promote stability, coherence, and legal certainty in Labor Justice, avoiding unnecessary litigation and ensuring the uniform application of the law in already settled matters. According to the President, the system is justified by a “conscious pragmatism” in the face of a massive volume of cases.

There was a reaffirmation of jurisprudence on topics such as:

• Fine under Article 477, § 8 of the CLT.
  The penalty is applicable when dismissal for cause is reversed by a court decision.
  

• Witness.
  Lawsuit filed against the same employer with identical claims. No grounds for suspicion.
  

• Working hours.
  Inability to monitor external work hours. Burden of proof lies with the employer.
  

• Overpayments to the claimant.
  Refund within the same enforcement proceedings. Not permitted.
  

• Garnishment of debtor’s income for payment of labor credits.
  Validity.
  

• Material damages.
  Monthly pension. Inability to perform the job. Contributing cause. Arbitrated amount.
  

• Work accident or occupational disease.
  Compensation for material damages (Art. 950 of the Civil Code). Lump-sum payment. Judge’s discretion.
  

• Bank employees.
  Profit sharing (PLR). Provision in collective agreement. Basis of calculation. Inclusion of overtime. Not permitted. Variable nature of the payment.
  

• Hazard pay.
  Aircraft refueling area.
  

• Insalubrity bonus.
  Artificially cold environment. Failure to grant thermal recovery break. Bonus is due.
  

• Outsourcing.
  Provision of services to multiple clients. This circumstance does not eliminate subsidiary liability.
  

• Postal worker (mail carrier).
  Robbery. Moral damages. Risk activity. Employer’s strict civil liability. Article 927, sole paragraph, of the Brazilian Civil Code.
  

• Hazard pay.
  Employee who supervises vehicle refueling by a third party. Hazard pay not applicable.
  

• Constructive dismissal.
  Failure to comply with intrajourney break and non-payment of overtime hours.
  

• Treasurers.
  Caixa Econômica Federal. Position of trust. Not characterized.
  

• Hazard pay.
  Forklift refueling. Replacement of LPG gas cylinder. Regularity. Intermittent exposure.
  

• Limbo previdenciário.
  Dano moral in re ipsa. Configuração. Indenização devida.

The following topics are still to be standardized by the Superior Labor Court:

• Expedited procedure.
  Limitation of the judgment to the amounts indicated in the initial claim.
  

• Hazard pay.
  Use of motorcycle during work. Article 193, § 4 of the CLT. Regulation. Ordinance No. 1.565/2014 of the Ministry of Labor and Employment.
  

• Oil workers.
  Shift rotation system, under Law 5,811/1972. Intershift break. Applicability of Article 66 of the CLT to the category. Provided for in a collective agreement. Subject of IRDR No. 5 of the 20th Region’s TRT.
  

• Compensation for moral damages.
  Repeated delays in salary payments.
  

• Enforcement.
  Agreement ratified in court. Penalty clause. Minimal delay in payment of an installment established in the agreement. Exclusion of the penalty. Not allowed. Res judicata. Violation. Equitable reduction of the penalty. Allowed. Principles of proportionality and reasonableness.
  

• Hazard pay.
  Flammable gas. Pipeline. NR-16 of the Ministry of Labor and Employment. Equivalence.
  

• Collective action.
  Order to individualize the liquidation and enforcement of the judgment.
  

• Collective action.
  Individual enforcement. Statute of limitations.
  

• Moral damages.
  Compensation. Sanitary barrier. Uniform change. 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 evidentiary hearing. Notification of attorney(s).
  

• Truck driver.
  Compensation based on commissions over transported cargo. Overtime calculation. TST Precedent No. 340.
  

• Denial of personal testimony.
  Judge’s discretion. Violation of the right to defense.
  

• Statute of limitations.
  Declaration ex officio. Not allowed.
  

• Mixed work shift.
  Application of TST Precedent 60, item II. Night shift allowance. Applicable.
  

• Transfer allowance.
  Temporariness. Time-based criterion. Insufficient.
  

• Free legal aid.
  Union. Procedural substitute. Proof of financial insufficiency. Required. TST Precedent No. 463, item II.
  

• Employee hired in Brazil to work on an international cruise ship.
  Applicable legislation.
  

• “Family Social Benefit”.
  Sponsorship through a compulsory contribution. Provided for in a collective agreement. Validity. Subject of IRDR No. 24 of the 18th Region’s TRT.
  

• Private entity.
  Interest and monetary correction. Moment of determination. ADCs No. 58 and No. 59. Decision issued during the knowledge phase that postpones to the enforcement phase the definition of criteria for updating the labor credit.
  

• Dismissal for cause.
  Proportional vacation pay. Proportional thirteenth salary. Application of TST Precedent No. 171. Amounts not due.
  

• Hazard pay.
  Security guard position. Law No. 12,740/2012. Article 193, II, of the CLT. Ordinance No. 1,885/2013 of the Ministry of Labor and Employment.

• Promotions based on seniority.
  Sufficiency of the objective time-based requirement. Not subject to other subjective criteria.
  

• Effective performance of teaching activities.
  Failure to meet the formal requirements of Article 317 of the CLT. Classification as a teacher is applicable.
  

• Disregard of legal entity.
  Failure to initiate an incidental proceeding. Violation of the right to defense. Nullity of acts of asset constraint.
  

• COVID-19 pandemic.
  Non-dismissal commitment. Unilateral termination of the employment contract after the commitment period. Discussion on the nullity of the dismissal.
  

• Empresa Brasileira de Correios e Telégrafos – ECT.
  Gratificação de férias sobre abono pecuniário. Mudança na forma de cálculo. Memorando circular nº 2.316/2016 – GPAR/CEGEP. Contrato de trabalho. Repercussão.
  

• Caixa Econômica Federal (CEF).
  Cash shortage allowance (cashier bonus). Simultaneous receipt with position of trust. Not allowed. Regulatory prohibition. Subject of IRDR No. 16 of the 1st Region’s TRT.
  

• Employer social security contribution.
  Social Security Relief Regime. Law No. 12,546/2011. Applicable to condemnatory or homologatory decisions issued by the Labor Court.
  

• Banco Santander.
  Special bonus paid at the employer’s discretion. Lack of objective criteria. Principle of equality.
  

• Insalubrity bonus.
  Garbage collection in residential condominium.
  

• Legality of employer-imposed control over bathroom use during the workday.
  Configuration of moral damages to the employee in re ipsa.

The topics above will be addressed in upcoming articles by CPDMA’s Labor Law team.

Labor Law | CPDMA Team