For the first time, a passenger transport application company will have to pay compensation for social damages caused in Brazil. Last week, a decision by the 8th Panel of the Regional Labor Court of the 4th Region (TRT4), in Porto Alegre (RS), condemned the US multinational Uber, and the US multinational Uber in R$ 1 millon (approx. $250,000) for the so-called “social dumping”, in a demand filed by a conductor who requested the recognition of his employment relationship.
The rapporteur, judge Marcelo Ferlin D’Ambroso, also understood that workers are subordinated to the company’s decisions by necessity, and that the company has a power of control and supervision over them. The fact that the driver uses his own vehicle and assumes the costs of maintenance and fuel, for example, would not mean that he is independent of the company, precisely because these conditions impose on them Uber.
Subordination was the only requirement of the employment relationship that had not been recognized in the first instance.
“The form of service provision does not denaturalize the essence of the employment relationship, based on the exploitation of work by account (…) There is nothing new in this, except for the new fraudulent method of computer engineering to mask the relationship labor”, escribió el magistrate.
What is it? dump Social?
D’Ambroso interpreted that Uber causes damage to the ground to the conductor, as an individual, bell to society as a whole.
The term, in its definition, consists of “the practice reiterated by the company of failure to comply with labor rights and the human dignity of the worker, with the objective of achieving a significant reduction in production costs, which results in an unfair competition”.
The millionaire value of the indemnity, therefore, must not be paid to the conductor who filed the claim, rather it is a public or philanthropic entity to be defined by the Ministerio Público del Trabajo.
Leah also: Tstreams see “manipulation of jurisprudence” by Uber and begin to rule in favor of drivers
The lawyer José Eduardo Resende Chaves Júnior, judge removed from the Regional Labor Court of the 3rd Region (TRT3), explains the concept on which he is based.
“he dump social, in the Juzgado de Trabajo, is a social, diffuse and collective damage, resulting from repeated injuries to labor rights. If it violates the structure of the social rights and the rules of the market, with the obtaining of an undue advantage on the competence”, he analyzes.
“Juridically it is considered an abuse of a right and, as such, constitutes an unlawful act. As for the applications, for the first time, but there are numerous decisions of the Labor Court that condemn the companies for the practice of social dumping “, recalls.
thesis of dump social is supported by the former conductor Wagner Oliveira in the book My battle against Uber, published in March of this year.
The Brazilian primer in suing the American company in Brazil, launched a channel on YouTube in which it analyzes the demands against the company and denounces the damage caused to the society.
“This decision of TRT4 was important and prevented Uber from committing another fraud against justice”, says Oliveira, who downloaded a video specifically about the decision of last week.
The former conductor refers to the strategy of “manipulation of jurisprudence”, adopted by the company, according to specialists.
“The company finds out if it is going to win or lose before the judgment and proposes an agreement [con el conductor] in the eve of the decision”, explains the author of the book. Therefore, no jurisprudence is generated against the company, I am solely in favor.
In this specific process, Uber proposed an agreement for R$ 12 thousand. In the case of the rapporteur of the case, “the aforementioned extrajudicial agreement signed between the parties does not reveal the intention of mutual concessions and, clearly, represents a frank harm to the worker”.
Wagner Oliveira assesses that the Brazilian justice system could move faster to guarantee the rights of the conductors.
“The thing is advancing, but it could move faster. Because we’re on the street so much, and we could have it solved. In California [en EE. UU.], started in 2009, and only in 2019 the labor relationship was approved”, dice.
“Considering that Uber came to Brazil in 2014, we have 2024 as a reference to enshrine this issue of the employment relationship. I hope we can review it before, to end this aberration that we see today, in the labor issue.”
The retired judge José Eduardo Resende Chaves Júnior recalls that in other countries similar decisions have been taken against Uber.
“In France, at the beginning of September, the justice ordered Uber to pay 180,000 euros to 910 taxi drivers. According to the decision, Uber violated the rules of market competition, causing moral damage to its reputation. recipients are taxi drivers”, he analyzes.
“The collective moral damage is not aimed at specific people. In the case of Brazil, it will not directly benefit application drivers, rather than the protection system or social assistance as a whole,” the lawyer concludes.
the other side
Questioned by the press shortly after the decision of TRT4, Uber said that “the legal rite of informing the parties about the result of a demand” was violated by the 8th Panel. Es decir, the media would have been informed before the company.
“As long as it has knowledge, the company will appeal the decision, which represents an isolated understanding and contrary to other cases prosecuted by the same Regional Court and by the TST (Superior Labor Court)”, added Uber.
The company also questions the reasons why the TRT4 negotiated the agreement with the conductor.
“In rejecting the agreement signed between the parties, the 8th Panel annuls the will to express its jurisdictions and completely disregards the directive of the Labor Court to give preference to the agreed solution of conflicts. Uber’s appeal will also present all the necessary information. for the annulment of the fee, applied by the Panel without any request in the process and based on arguments apparently of an ideological nature”, says Uber, who does not recognize a labor relationship with the conductors.
“The TST has acknowledged, in four sentences, that there is no employment relationship between Uber and its partners. More recently, the 5th Panel discarded the hypothesis of subordination in the relationship of the conductor with the company, and that this one could end y delete the application when you want and put it at your disposal, at the same time, to all the transport applications you want’”, recalls the company.
“A similar understanding was adopted in other TST sentences in 2020, in February and September, and also by the Superior Court of Justice in sentences since 2019 — more recent was published a few weeks ago”, he concludes.
Brazil in fact I contacted the company to find out if there is anything to add about the case, and that last week I had had access to the sentence. The article will be updated as soon as there is a response.
Edition: Vivian Virissimo