“Social Dumping”: Understand unprecedented and millionaire conviction

For the first time, a passenger transport application company will have to pay compensation for social damages caused in Brazil. Last week, a decision of the 8th Panel of the Regional Labor Court of the 4th Region (TRT4), in Porto Alegre (RS), condemned the US multinational Uber in R$ 1 million for the so-called “dump social”, in action opened by a driver.

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 controlling and supervisory power over them. The fact that the driver uses his own vehicle and assumes maintenance and fuel costs, for example, would not mean independence from the company, precisely because such conditions are imposed by Uber.

Subordination was the only requirement of the employment relationship that had not been recognized in the first instance.

“The way in which services are provided does not denature the essence of the employment relationship, based on the exploitation of work on behalf of others. (…) There is nothing new in this, except for the new fraudulent method of computer engineering to mask the employment relationship,” wrote the magistrate.

Which is dump Social?

D’Ambroso interpreted that Uber causes harm not only to the driver, as individuals, but to society as a whole.

The term, in his definition, consists of “repeated practice by the company of non-compliance with labor rights and the human dignity of the worker, aiming to obtain a significant reduction in production costs, resulting in unfair competition.”

The millionaire value of the indemnity, therefore, should not be paid to the driver who filed the lawsuit, but to a public or philanthropic entity to be defined by the Public Ministry of Labor.

Also read: Tstreams see “manipulation of jurisprudence” by Uber and begin to rule in favor of drivers

Lawyer José Eduardo Resende Chaves Júnior, retired judge of the Regional Labor Court of the 3rd Region (TRT3), explains the concept that based that conviction.

Dumping social, in the Labor Court, is a social, diffuse and collective damage, resulting from repeated injuries to labor rights. The structure of social rights and market rules is violated, with the obtaining of an undue advantage over the competition”, he analyzes.

“Juridically it is considered an abuse of a right and, as such, it constitutes an illicit act. Regarding the applications, it is the first time, but there are numerous decisions of the Labor Court that condemned companies for the practice of dump social”, he remembers.

It’s not from today

the thesis of dump is supported by former driver Wagner Oliveira in the book My battle against Uber, released in March this year.

The first Brazilian to sue the US company in Brazil, he launched a YouTube channel in which he analyzes the lawsuits against the company and denounces damages caused to society.

“This decision by TRT4 was important and inhibited Uber from committing yet another fraud against justice,” says Oliveira, who recorded a video specifically about last week’s decision.

The former driver refers to the strategy of “manipulation of jurisprudence”, adopted by the company, according to specialists.

“The company finds out whether it will win or lose before the judgment, and proposes an agreement [com o motorista] on the eve of the decision”, explains the author of the book. Thus, jurisprudence would not be created against the company, but only in favor.

“Things are moving forward, but it could move faster. Because people are in the street suffering horrors, and we could have already solved it. In California [nos EUA], they started in 2009, and only in 2019 was the employment relationship approved”, adds Wagner Oliveira.

“As Uber arrived in Brazil in 2014, we have 2024 as a reference to enshrine this bond issue. I hope we can review it beforehand, to end this aberration that we see today, in the labor issue.”

Retired judge José Eduardo Resende Chaves Júnior recalls that similar decisions against Uber have been taking place in other countries.

“In France, now in early September, the court ordered Uber to pay 180,000 euros to 910 taxi drivers. According to the decision, Uber violated market competition rules, causing moral damage to their reputation. It is a similar decision. , although the 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, but the protection or social assistance system as a whole”, concludes the lawyer.

Other side

Questioned by the press shortly after TRT4’s decision, Uber said that “the legal rite of informing the parties about the outcome of a lawsuit” was violated by the 8th Panel. In other words, the media would have informed before the company.

“As soon as it is aware, the company will appeal the decision, which represents an isolated understanding and contrary to other cases already judged by the Regional Court itself and by the TST (Superior Labor Court),” added Uber.

The company also questions the reasons why the agreement with the driver was denied by TRT4.

“By refusing an agreement signed between the parties, the 8th Panel overrides the express will of its jurisdictions and completely disregards the directive of the Labor Court in preference to the consensual solution of conflicts. Uber’s appeal will also present all the necessary facts for the annulment of the assessment, applied by the class without any request in the process and based on arguments apparently of an ideological nature”, says Uber, which does not recognize a work relationship with the drivers.

“The TST has already recognized, in four judgments, that there is no employment relationship between Uber and its partners. In the most recent, the 5th Panel ruled out the hypothesis of subordination in the driver’s relationship with the company, since he can ‘call and turn off the app whenever you want’ and ‘make yourself available, at the same time, for as many travel apps as you want'”, recalls the company.

“A similar understanding has already been adopted in two other TST judgments in 2020, in February and September, and also by the Superior Court of Justice in judgments since 2019 — the most recent was published a few weeks ago”, he concludes.

O Brazil in fact contacted the company to find out if there is anything to add about the case, as last week Uber would not have even had access to the conviction. The article will be updated as soon as there is a return.

Edition: Vivian Virissimo

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