The Labor Reform (Law 13.467/2017) now allows the use of voluntary jurisdiction in the Labor Courts, making it possible to ratify out-of-court agreements between the parties, aimed at settling sums related to the end of the contract between the worker and the company.
Voluntary jurisdiction consists of the possibility of settling claims without litigation, i.e. the parties agree on a settlement. In these cases, the judge does not take on the role of conflict resolver, but acts to validate the will of the parties, verifying that the legal procedures adopted are correct and that the acts carried out are regular, giving legitimacy to the agreement reached.
Although the Code of Civil Procedure provides for the use of voluntary jurisdiction in various claims, the Labor Court limits its possibility only to out-of-court settlements under the terms set out in the CLT, so the parties must submit a joint petition to the labor judge specifically stating which amounts are being paid in the settlement, which will ultimately be ratified by the judge.
Although very simple in its conception, the ratification of out-of-court settlements has become more restricted than the legislation provides. As it is a procedure initiated by the parties, similar to a contract between them, the judge would only act to validate compliance with the specific legal requirements of the CLT, as well as the general requirements presented by the Civil Code (capable parties, lawful object, prescribed form), which deal with the validity of legal transactions in a broad manner, without intervention as to the conditions inserted in the transaction.
Traditionally, when formalizing an agreement in a labour lawsuit, it was common to include a general discharge clause. This clause, standard in any draft, is also used for agreements made at hearings. This is because the general and unrestricted discharge is intended to end the relationship between the parties, preventing a new lawsuit from being filed to discuss any rights arising from it or from the terminated employment contract.
Thus, the same practice has been adopted in cases of out-of-court settlements, as a logical effect of full compliance with the agreement submitted for judicial approval.
However, many labor judges have adopted a cautious stance in relation to the discharge clause, refusing to approve agreements with this condition, often on the grounds that its adoption would constitute an abusive act on the part of the company, which would be taking advantage of the workers’ fragility to force them to renounce rights to which they were entitled, even though they were assisted by their own lawyers and fully agreed to the negotiation established and presented to the courts.
Thus, the ratification of out-of-court settlements became conditional on the withdrawal of the general discharge clause, or even partial, without recognizing the clause expressed in the document, extending its validity only to the uncontroversial amounts expressly itemized in the draft, based on the principle of the free will of the court and the summarized understanding that the ratification of settlements is an option of the court, and does not constitute a liquid and certain right of the parties.
Following this position, the decision of the Third Panel of the Superior Labor Court confirmed the understanding of the judges at first instance. They ruled that it is possible to partially ratify an out-of-court agreement, granting discharge only to the amounts listed in the draft, over which there is no dispute, excluding those that are considered illegal, abusive or fraudulent.
For the Justices, the judge’s role goes beyond merely ratifying the will of the parties, which is expressed in the draft agreement, and must act as a moderator, safeguarding the rights of the worker, as they are the hyposufficient party in the relationship and avoiding vices, simulated acts, fraud or excessive harm to one of the parties.
It so happens that labor legislation, before the possibility of voluntary jurisdiction, was extremely rigid in relation to negotiations between company and worker, often forcing the worker to go to court for issues that could easily be resolved out of court, burdening themselves, the company and the judiciary itself, constituting a real bureaucracy for the worker to receive their rights, safeguarding the legal security of the company which, by paying for that transaction, would not risk being sued again for the same reason.
According to the CNJ’s “Justice in Numbers 2022” bulletin, it takes an average of 1 year and 2 months before a sentence is handed down in the labor courts, almost 27 times longer than the out-of-court settlement procedure, which provides for the settlement to be analyzed and sentenced in 15 days (if a hearing is unnecessary).
In this way, the judiciary’s stance creates legal uncertainty for companies and employees, who don’t know whether the out-of-court agreement will be fully ratified, partially ratified or completely rejected, forcing them to file a lawsuit to actually end the employment relationship definitively, both of whom will be harmed by the slowness of the judiciary, so that in the end the parties can sign an agreement at a hearing, using the infamous general discharge clause for the relationship between the parties and/or the terminated employment contract, achieving the same result that would have been obtained with an out-of-court agreement.
The legislator’s intention was precisely to bring autonomy and agility to both the worker and the company, which has been totally mischaracterized by the position of judges, judges and now TST ministers, since, even if there is no element that denotes bad faith in the agreed clauses, including the general discharge, the labor courts prevent the parties from exercising their own will, making it completely unfeasible to use a device that should facilitate access to justice.
If you have any questions on the subject, our labor team is at your disposal.
