Paloma da Silva Aguiar
Lawyer at Marcos Martins Advogados
As a priority, it is worth highlighting the provisions of the head of article 844 of the Consolidation of Labor Laws – CLT, “in verbis”:
Art. 844 – The failure of the claimant to appear at the hearing shall result in the complaint being filed, and the failure of the defendant to appear shall result in default, in addition to confession as to the facts.
With regard to the subject of “default”, it’s worth looking up the meaning of this word in the dictionary¹, for better clarification.
The character or behavior of being in absentia².
[Legal] Legal situation of someone who is summoned to appear in court and does not do so; condition of the defendant who does not appear at his own trial or who does not present a defense.
This understanding, provided for in the dictionary, perfectly describes the condition of a defendant in default in the civil sphere, while in the labor sphere, specifically, it is enough for the defendant not to attend the hearing for which he was summoned, precisely because the fact that he presents his defense via the internet and does not attend the hearing would not make him escape this condition of default.
So, the following question arises: If the defendant attends the hearing without having presented his defense via the internet, for what reason would he still not be considered in default?
Article 847 of the CLT provides for this, “in verbis”:
Art. 847 – If there is no agreement, the defendant shall have twenty minutes to present his defense, after the complaint has been read, when the latter has not been waived by both parties. (Edited by Law no. 9.022, of 5.4.1995). (emphasis added).
Sole paragraph. The party may submit a written defense through the electronic judicial process system until the hearing. (Included by Law No. 13,467, of 2017).
The Labor Reform, Law No. 13,467 of 2017, brought a novelty when it inserted a fourth paragraph into article 844 of the CLT, namely:
§Paragraph 4 Default shall not produce the effect mentioned in the heading of this article if: (Included by Law No. 13,467, of 2017).
I – if there is a plurality of defendants, one of them contests the action; (Included by Law No. 13,467 of 2017).
II – the dispute concerns unavailable rights; (Included by Law No. 13,467 of 2017).
III – the initial petition is not accompanied by an instrument that the law considers indispensable for proof of the act; (Included by Law No. 13,467 of 2017).
IV – the allegations of fact made by the claimant are untrue or contradict evidence in the case file. (Included by Law No. 13,467 of 2017).
The following possibility must also be verified, provided for in paragraph 5 of article 844 of the CLT, a paragraph included by Law No. 13,467 of 2017: If the defendant does not attend the hearing, but his lawyer attends and still presents a defense with all the necessary documents, default will be observed in the face of the defendant, however, the theses of the defense, as well as all the documentation attached, will be evaluated by the Court at the time of passing the Judgment.
However, as every rule can have an exception, in this case the exception is also observed, according to Precedent 122 of the Superior Labor Court – TST, “in verbis”:
TST Precedent No. 122
REVELIA. MEDICAL ATTESTATION (incorporated into Jurisprudential Guideline no. 74 of SBDI-1) – Res. 129/2005, DJ 20, 22 e 25.04.2005.
The defendant, who is absent from the hearing at which he was to present his defense, is in default, even if his lawyer is present with a power of attorney, and default can be avoided by presenting a medical certificate, which must expressly state that the employer or his representative is unable to move on the day of the hearing. (first part – former SBDI-1 Jurisprudential Guideline No. 74 – inserted on November 25, 1996; second part – former Precedent No. 122 – amended by Res. 121/2003, DJ November 21, 2003). (emphasis added).
It is important to note here that as soon as the defendant’s inability to travel to the hearing is observed, it must be justified, either by his lawyer at the hearing itself, or later, by means of a petition attached to the case file.
If this condition goes beyond the sentence/judgment, complications can be observed in the analysis of the medical certificate by the judges of the Court or the TST, as can be seen in the following case law on the TST website.
INTERLOCUTORY APPEAL IN APPEAL FOR REVIEW. REVELIA. MEDICAL CERTIFICATE. IMPOSSIBILITY OF LOCOMOTION. LACK OF INDICATION. According to Precedent 122 of this Court, justification for absence presupposes the impossibility of travel, but this factual and probative aspect was not recorded by the TRT, so that it is not possible for this Court to look directly at the medical certificate to verify whether or not the requirement of the precedent has been complied with. Precedent 126 of the TST applies. Interlocutory appeal dismissed. (Case AIRR 2335-32.2011.5.01.0461). Judging Body: 07th Panel. Publication: DEJT 28/11/2014. Judgment: November 19, 2014. Rapporteur: Arnaldo Boson Paes) (emphasis added).
It can therefore be concluded that it is extremely important to ensure that the employer or his representative is present at the designated hearing, so that he has the right to present his defense with valid documents that are necessary to prove his counter-allegations.
__
¹ Dicio. Online Portuguese Dictionary. Available at <https://www.dicio.com.br/revelia/>. Accessed on Nov. 16, 2018.
² Default is the inertia of the parties when they have a duty to perform a certain obligation or act during the proceedings. Default, in turn, is a type of default.
