Jayme Petra de Mello Neto
Lawyer at Marcos Martins Advogados
In a recent decision, the Superior Labor Court ruled that a decision declaring a company in default and confessed because it failed to appear at the pre-trial hearing was null and void. Under the terms of the decision, the Eighth Panel of the TST ordered the reopening of the hearing of the labor claim, since the summons to attend the hearing was only issued on behalf of the lawyer.
As the companies complained against were absent from the hearing scheduled for the 19th Labor Court of Rio de Janeiro (RJ), the judge declared that they were in default and that they had confessed, ordering them to pay various sums, and the decision was upheld by the TRT of the 1st Region (RJ).
However, when issuing the decision on the appeal, the TST pointed out that the lack of personal summons and the application of the penalty of confession for the companies’ non-appearance characterizes, according to the Panel, the curtailment of the right of defense and led to the nullity of the resulting procedural acts.
In this regard, the rapporteur, Justice Márcio Eurico Vitral Amaro¹, pointed out that, for the penalty of confession to apply, it is important for the party to be personally and expressly summoned, “including the warning of the application of said penalty in the event of non-appearance”. In this way, the previous instances denied the obligations of Precedent 74, item I, of the TST, which deals with the penalty of confession ficta, and article 343, paragraph 1, of the Code of Civil Procedure (CPC).
In this way, the appeal was unanimously granted to dismiss the application of the confession penalty, as well as declaring the existence of a procedural nullity and returning the case file to the Labor Court in order to reopen the procedural instruction with the personal summons of the defendant.
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¹ TST – RR: 101057320135010019, Rapporteur: Márcio Eurico Vitral Amaro, Date of Judgment: 19/09/2018, 8th Panel, Date of publication: DEJT 21/09/2018. Available at: <clickhere>
