As a way to harmonize the consolidated jurisprudence within the TST’s Collegiate Bodies, the established theses must be observed by the Regional Labor Courts.

In this context, Resolution 224/2024 added provisions to TST’s IN 40/2016, establishing the admissibility of an Internal Appeal against decisions of the Regional Labor Courts that deny the review of an Appeal when the contested ruling is based on decisions issued by the TST in the judgment of IRR, IRDR, or IAC. In other words, in such cases, an Instrument Appeal in Review (AIRR) to the Superior Labor Court will no longer be applicable.

The Regional Courts (via Internal Appeal) must align their understanding with the principles of the Superior Labor Court, ensuring greater efficiency and effectiveness in the appeals system.

Among the approved binding theses, whose final wording will still be published by the TST, are the following, among others:

• Impossibility of direct payment of FGTS to the employee

In cases where the employee files a labor claim seeking the payment of amounts related to the FGTS and the corresponding fine, the amounts must be deposited into a linked account and not paid directly to the worker.

• Break for women in case of overtime work

Article 384 of the CLT was incorporated into the 1988 Federal Constitution, making overtime payments due for failure to observe the break it established during the period prior to its repeal by Law No. 13,467/17. No minimum overtime duration is required to establish the right to this break.

• Penalty for delayed severance payments in cases of constructive dismissal

The recognition of constructive dismissal in court does not exempt the application of the penalty established in Article 477, §8, of the CLT.

• Dismissal of pregnant employees and union assistance

The validity of a resignation request by a pregnant employee, who is entitled to provisional job stability under Article 10, Section II, item “b” of the Transitional Constitutional Provisions Act (ADCT), is subject to the assistance of the professional union or the competent local authority, as established in Article 500 of the CLT.

• Party that does not bring witnesses to the hearing

The denial of a request to postpone a single or evidentiary hearing does not constitute a violation of the right to defense when the party, having been previously summoned to submit a list of witnesses, fails to do so or does not bring witnesses voluntarily to the hearing.

• Reversal of dismissal for cause due to an accusation of misconduct

The mere unfounded accusation of dishonesty against an employee is not sufficient to validate a dismissal for cause based on misconduct (CLT, Article 482, item "a"), and if reversed judicially, it constitutes in re ipsa damage, entitling the employee to compensation for moral damages (CF, Article 5, item X; CLT, Article 223-B; and CC, Articles 186, 187, and 927).

• Promotion based on seniority

Under the principle of the burden of proof, it is the employer’s responsibility to prove that the employee did not meet the necessary requirements for the granting of a seniority-based promotion.

• Restroom and meal area for cleaning and maintenance workers performing outdoor activities

   

The lack of adequate sanitary facilities and a proper meal area for employees performing outdoor cleaning and maintenance of public spaces entitles them to moral damages compensation from the employer. This is due to the violation of minimum hygiene and occupational safety standards, which are necessary and required in the workplace (NR-24 of the MTE, CLT, Article 157, Law No. 8.213/91, Article 19, and CF, Article 7, item XXII).

• Commissions on canceled sales

Non-payment or cancellation of a purchase by the customer does not authorize the employer to revoke the employee's commissions.

• Commissions on installment sales

The commissions owed to the sales employee for installment sales must be calculated based on the total transaction amount, including interest and any financial charges, unless otherwise agreed.

• Moral damages in cash transportation

Requiring a worker who is not a security specialist to transport cash exposes them to risk and constitutes an unlawful act, justifying compensation for moral damages, without the need to prove psychological distress. The compensation is due even in cases where the employer operates in an economic sector other than financial services.

• Failure to record employment in the CTPS

The absence of an entry in the employee’s Work and Social Security Card (CTPS) does not, by itself, constitute in re ipsa moral damage. Therefore, proof of embarrassment or harm suffered by the worker in their intangible assets is required, in accordance with Articles 186 and 927 of the Civil Code.

• Inspection of bags and belongings

The mere visual inspection of employees' belongings, as long as it is conducted in an impersonal and general manner, without physical contact or exposure of the worker to a humiliating or degrading situation, does not constitute an unlawful act that would justify compensation for moral damages.

• Nature of the freight transportation contract

The freight transportation contract, due to its commercial nature rather than a service provision, excludes the outsourcing regulations established in TST Precedent No. 331, preventing the subsidiary liability of the contracting party.

• Constructive dismissal due to delayed FGTS payments

Irregularities in FGTS deposit payments constitute a breach of contractual obligations under Article 483, item "d" of the CLT, with sufficient severity to justify constructive dismissal. The employee’s immediate reaction to the contractual breach is not required.

Additionally, the TST approved the submission of 14 new topics to the system of Repetitive Appeals Review. The decision aimed to standardize jurisprudence on recurring issues in labor justice, providing greater predictability and efficiency in the adjudication of repetitive matters, such as:

• Payment of court fees and appeal bond: validity of the payment of the appeal preparation fee by a third party not involved in the case.

• Piercing the corporate veil: whether the disregard of legal personality in labor law is governed by the broader or narrower theory, and the potential direct and literal violation of the Federal Constitution on this matter for the admissibility of an appeal in the enforcement phase.

• Classification of the degree of hazardous work by collective agreement: validity of a collective agreement that establishes the classification of the degree of hazardous working conditions.

• Paid weekly rest in the 5x1 work schedule: analogous application of Article 6, sole paragraph, of Law No. 10,101/2000, and the applicability of TST Precedent No. 146 (double payment) in cases where the paid weekly rest does not coincide with Sunday every three weeks of work.

   

• Conversion of resignation into constructive dismissal: the possibility of judicially converting an employee's resignation into constructive dismissal in cases of serious misconduct by the employer (CLT, Article 483).

• Compensation for material damages in a lump sum: application of a reduction factor to the compensation amount, awarded in a single payment, related to the lifetime pension for permanent incapacity of the employee due to a work accident or occupational disease, as provided in Article 950, sole paragraph, of the Civil Code.

• Substitution of the appeal bond with surety insurance or bank guarantee: validity period (indefinite, conditioned until the final resolution of the dispute, or fixed-term) of the bank guarantee or surety insurance.

• Subsidiary liability in a faction contract: application of TST Precedent No. 331, item IV, to commercial contracts in the faction model.

   

• Intermittent prescription: applicability of the statute of limitations to enforcement titles constituted before Law 13,467/2017 (labor reform).

• Suspensão do prazo prescricional prevista na lei 14.010/20:  suspensão dos prazos prescricionais prevista na Lei nº 14.010/2020 e sua aplicabilidade ao Direito do Trabalho.

In conclusion, it is important to highlight that, according to the President Minister Aloysio Corrêa da Veiga, the path adopted was historic for the TST, which consolidated its position as “a court of precedents, and not a court of last resort,” stating that standardization is necessary to deepen the judgments on important labor relations issues. He further added that jurisprudence is not static (overruling, distinguishing, and overriding). “It can be overcome. But similar cases must be decided in the same way.”

The topics mentioned above and several others will be the subject of a detailed analysis on this blog.

Source: Superior Labor Court

Labor Law | CPDMA Team