Ariadne Fabiane Velosa
Lawyer at Marcos Martins Advogados
The Regional Labor Court of the 12th Region dismissed a claim by a motorcycle courier who sought to be recognized as an employee of a restaurant in a city in the interior of Santa Catarina.
In the Labor Claim, the motorcycle courier claimed that he had worked for over a year making deliveries for the restaurant and that he only had one day off a week. He also presented a tracking device to reinforce his claim that the company controlled and supervised his work. Thus, according to the Claimant, this demonstrated subordination, one of the essential attributes of the employment relationship.
The company presented a defense in the case, stating that it used the work of five to ten motorcycle couriers for deliveries; however, this team was not fixed, but that the workers were self-employed. As such, there was no personal nature to the service provided, which is another essential requirement for the formation of an employment relationship, under the terms of articles 2 and 3 of the CLT.
The labor judge denied the worker’s request on the grounds that the body of evidence was not sufficient to prove the employment relationship, also highlighting the case law of the Regional Labor Court of the 12th Region that in this case, the non-existence of the relationship is presumed.
The judge also pointed out that article 6 of Law 12.009/09 states that self-employed motorcycle couriers can work continuously for the same employer – the service provider.
The 5th Chamber of the Regional Labor Court of the 12th Region upheld the judge’s thesis, pointing out that the autonomous and continuous contracting of motoboy services leads to a presumption that there is no employment relationship, which reinforces the need for evidence to the contrary.
