Jayme Petra de Mello Neto
Lawyer at Marcos Martins Advogados
The labor reform brought an innovation to the labor process, regulating the application of a fine for bad faith litigation, which until the entry into force of Law 13.467/2017 was little used by magistrates, and when they did, they used the Civil Procedure Code by analogy, consequently leading to a large number of labor lawsuits with exorbitant amounts and unfounded claims, given the little risk, or even almost none for the plaintiff.
Currently, the fine for bad faith litigation, in addition to being provided for in article 80 et seq. of the CPC, is also provided for in articles 793-A, 793-B and 793-c of the CLT, which state that bad faith litigation is committed by anyone who claims or defends against an express text of the law, alters the truth of the facts, has an illegal objective, opposes procedural progress, causes unfounded procedural incidents, and files appeals that are merely delaying proceedings, any of which will result in a fine of more than 1% and less than 10% of the corrected value of the case, in addition to bearing attorney’s fees and any expenses incurred.
Also noteworthy is paragraph 3 of article 793-C, which establishes, in addition to the aforementioned fine, compensation in an amount to be set by the judge.
In a recent decision handed down by the Labor Court, the plaintiff was ordered to pay a fine for bad faith litigation of 5% and damages of 20%, both on the value of the case, which should be deducted from any workers’ compensation claim.
This conviction came about because he had applied for pre-retirement stability, provided for in a collective bargaining agreement, of which, according to the judge, he was aware that he was not entitled to such stability.
According to the grounds of the judgment, it was shown in the case file that the plaintiff had been fully aware for a year before his dismissal and the filing of the lawsuit that he had already met the requirements for special retirement, i.e. he filed a labor claim for a right that he knew he did not have beforehand.
The aforementioned conviction shows that the express provision of the fine for bad faith litigation in the CLT has brought legal certainty to the companies complained against, since it discourages legal adventures that had exorbitant case values, given the fear of the plaintiffs with the possibility of conviction.
