Sibele de Oliveira Pimenta
Lawyer at Marcos Martins Advogados
A labor court in the interior of São Paulo dismissed a commercial representative’s claim for employment with a company in the cereal industry, recognizing the lawfulness of providing services on an autonomous basis, without legal subordination.
In the case in dispute, although there was no written contract between the parties, the self-employed saleswoman was registered with the Regional Council of Commercial Representatives (CORE) and always carried out her activities with complete autonomy, even being able to represent several other companies from different segments.
The magistrate, based on the evidence gathered, based his decision on the principle of the primacy of reality and on the Claimant’s own confession, who stated in her personal statement that she only came to the company for get-togethers, that she only received pure commission on sales made, without any payment of any other fixed amount and that there was no control of working hours.
Once the services were admitted and the company had the burden of proof, it was able to prove that the worker was not subjected to a working day determined and supervised by the company, a circumstance corroborated by the employer’s witness who stated that there was no daily, weekly or monthly attendance at the company, much less control of working hours or even the setting of targets and routes for visiting clients, with the representatives being responsible for their own itinerary.
The labor judge also pointed out that “legal subordination is the main element of the employment contract, which differentiates it from other types of employment contract”, and that the Claimant had always carried out the authentic activity of commercial representative.
The company was represented by the labor team of Marcos Martins, a specialist in corporate labor law.
