The theme attributed to this article indicates the unanimous opinion of Brazilian businessmen regarding the excessive protection of the worker in judicial labor relations. It is very common to hear from businessmen some history that links the impotence of a company to defend itself in a labor lawsuit.

At the time of the edition of the CLT (Consolidation of Labor Laws) in 1943, the existence of labor functions under subhuman conditions and even slavery was very common. For this reason, the labor law was created exactly to be protectionist and, thus, to facilitate the means of proving the rights alleged by the worker in the judicial sphere.

Just to illustrate the excessive “protection” that permeates the Labor Judiciary, even today, judges have to accept “any” type of evidence to assert the rights of the worker. Any kind of proof anyway! They go so far as to judge actions based on testimonial evidence from people who have never been in the work environment, to prove, for example, an employee’s overtime arrangements; when a neighbor (who the company does not know this condition to contest the testimony) usually involved in the degree of friendship, the way entering or leaving the company.

But this is not only the problem. The biased and even truculent conduct of many judges to force the parties to make agreements – often unfair – based on clear threats of condemnation without analysis of any merit in the case makes the businessman who attends an audience think that the process is already lost. With this feeling of terror, he surrenders and accepts to pay high and abusive values; which, often, the worker has no right, but, given the “risk” well explored by the judges, end up accepting.

Justiça do trabalho 2

This is due to the outdating of the procedural norms regulating labor rights, since the great landmark known as Consolidation of Labor Laws, Law no. 5452, was established in the year 1943.

If it were not enough for the defense of the company in court, there is still a pecuniary obligation so that it is possible to bring appeals to review decisions – which is a constitutional right of those who lose a case. Known as a recourse deposit, this is one of the assumptions of admissibility to be accepted an appeal. The company must deposit such amount into a court account for its appeal to be reviewed. The current amounts to appeal are set at R $ 7,485.83 for the Regional Courts and R $ 14,791.65 for the Superior Labor Court in Brasília.

Faced by lawyers representing companies as a form of defense restraint, it is also a method found by the administration of Justice to unseat the courts; having as its last ground a “guarantee” to the employee, even if unfair, in the case of maintenance of the decision, these amounts are reversed to at least part of the conviction.

Finally, it also serves for the businessman to make the count: pay an unfair agreement (less than the deposit recursal) or risk and have to deposit that absurd amount to appeal. The worker, in the overwhelming majority of cases, is freed from these collections by the gratuitous access to justice that is granted to him.

All these details make the systematic labor procedure to be considered unfair to the point of limiting the constitutional right of double degree of jurisdiction, which is the review of a judgment of first instance by a collegial court (which contains more than one judge). This right is guaranteed by the Federal Constitution to “all parties” who are fighting for their rights; author or defendant.

Of course, it is not possible to generalize the conduct of the judges. Yes, there are impartial judges and just decisions; but it is not the rule.

On the other hand, some people say that there is still work in irregular and even subhuman conditions in Brazil. And it’s true.

There have been and still are occurrences like these in places far from the big urban centers. In order to work with this reality, the Judiciary was divided into Regional Courts, whose special attribution is to evaluate the cases before the specificity of labor relations in each place of judgment; divided into rules by cities, called judicial sections.

What is expected of a change? That the Legislature be aware that the businessman has all the risk of the economic activity to his disadvantage; pays one of the highest tax rates in the world, in contrast to a biased and protectionist right, in which the employee is always placed in a position of hypersufficiency.

It is necessary to change the law to balance the balance, along with actions of awareness of the judges, that the company is not villainous and that the rights are equal for all, especially the evidentiary obligation.

In large centers, workers know more about their rights than entrepreneurs. This information is due to the efficient work of the unions and also to the facility to obtain legal advice with lawyers and even on the internet.

In summary, there is no legal certainty in Brazil. The company can make every effort to comply with thousands of rules that involve the activity developed, but even so, the decision of a process can, with great chances, be negative.

The duty of change is an immediate necessity, and failing that, the outlook for the future is staggering. It is enough to combine this scenario with the current economic situation of the country, the laws and the predatory tax burden that involves any business activity.