Luara Zanfolin Frasson de Rezende
Lawyer at Marcos Martins Advogados
There has been a lot of discussion about the issue of pre-contracts in the labor sphere, with regard to the liability of the future employer and the competence of the Labor Courts to judge such claims.
A pre-contract is a perfect and finished legal act whose object is the promise to enter into a future contract and, therefore, with binding effect on the parties, i.e. the legal relationship is in the phase prior to the actual employment relationship, when the candidate takes part in the selection process and receives confirmation of their approval, creating an expectation that they will be hired by the future employer.
From this point of view, it seems that if there is no employment contract and the characteristics of a proper employment relationship, the Labor Court would not be competent to judge such issues.
However, it is understood that since the promise of employment brings together all the typical elements essential to the definitive contract, if there is a preliminary contract, there would be a shift of jurisdiction to the Labor Court.
It is also argued that the jurisdiction attributed to the Labour Court, through Constitutional Amendment No. 45, in its article 114, which deals with relations between workers and employer and not employee and employer, has come to attribute to this specialized court the judgment of claims that cover pre-contractual liability.
Thus, the prevailing doctrine and case law converge in the understanding that claims regarding pre-contractual liability fall within the jurisdiction of the Labor Court and must be settled by it.
COMPETENCE OF THE LABOR COURTS TO ASSESS ISSUES RELATED TO THE PRE-CONTRACTUAL PHASE. FUTURE EMPLOYMENT RELATIONSHIP. An issue arising from a potential future employment relationship is related to the pre-contractual phase and attracts the jurisdiction of this Specialized Court to judge the dispute, which is competent to process and judge other disputes arising from the employment relationship (art. 114, IX, of the Constitution of the Republic). (TRT-3 – RO: 00234201304003002 0000234-96.2013.5.03.0040, Rapporteur: Sercio da Silva Pecanha, Eighth Panel, Date of Publication: 08/11/2013 07/11/2013. DEJT. Page 115. Bulletin: No.)
Well then, bearing in mind the requirements for the formation of a contract (capable parties, lawful and determined or determinable object, social function, in addition to probity and good faith in its conclusion), the liability of the future employer in the pre-contractual relationship can only be triggered through the Labor Court, when there is a violation of the principles of probity and good faith, provided for in art. 422 of the Civil Code.
This is because damage in the pre-contractual phase does not arise from a breach of the employment contract, as this has not yet been perfected, but from an offense against a duty of conduct.
ORDINARY APPEAL. PRE-CONTRACTUAL LIABILITY. MORAL AND MATERIAL DAMAGES. The frustration of going through a long selection process, being approved, receiving the promise of employment, leaving the previous job and not being hired due to the sole fault of the promisee gives rise to the payment of compensation for moral and material damages, in view of the breach of the principle of objective good faith (art. 422 of the CC), which must also be respected in the pre-contractual phase, and because the assumptions of civil liability are present (art. 927 of the CC). (TRT-4 – RO: 00005311620125040233 RS 0000531-16.2012.5.04.0233, Rapporteur: LENIR HEINEN, Date of Judgment: 04/18/2013, 3rd Labor Court of Gravataí)
PRE-CONTRACTUAL CIVIL LIABILITY. MORAL DAMAGES. POSSIBILITY. The employer’s civil liability is not limited to the contractual period, but may also extend to the pre-contractual phase. The fact is that both the employee and the employer, when they sign an employment contract, or even during the negotiations prior to its execution, incorporate the duty of contractual loyalty, which imposes the adoption of conduct within a limit of consideration, collaboration, cooperation and trust towards the other subject of the relationship. This is the concept derived from art. 422 of the Civil Code, which is subsidiarily applied to labor law by virtue of art. 8, sole paragraph, of the CLT. (TRT-1 – RO: 12059620115010205 RJ , Rapporteur: Angelo Galvao Zamorano, Date of Judgment: 07/10/2013, Tenth Panel, Date of Publication: 07/22/2013)
INDEMNIFICATION FOR MORAL DAMAGES. PRE-CONTRACTUAL LIABILITY. It is a flagrant abuse of rights to dismiss the plaintiff before the start of the services, after he had been approved in a selection process and had undergone an admission exam with the promise that he would start providing services on an agreed date, which was frustrated. Therefore, the plaintiff is entitled to compensation for moral damages, given the employer’s pre-contractual liability. (TRT-3 – RO: 0001467-56.2012.5.03.0043, Rapporteur: Anemar Pereira Amaral, Second Panel, Publication Date: 16/10/2013 15/10/2013. DEJT. Page 52. Bulletin: Yes.)
It should also be noted that, in the absence of an employment contract as such, there is no possibility of demanding fulfillment of the promise of an employment relationship, but only compensation for the damage suffered as a result of the breakdown of preliminary negotiations.
It is important to note, however, that the mere withdrawal by the future employer from the continuation of the preliminary negotiations, i.e. the breakdown of the negotiations, does not in itself give rise to the duty to compensate the candidate, and there must be concrete proof that the candidatewas effectively harmed by this interruption.
Thus, it would not be enough just to allege that the pre-contract was not fulfilled, but to actually prove that this interruption caused damage to the candidate, such as in cases where the candidate refuses other opportunities (loss of a chance) or resigns from a previous job to start with the new company.
PRE-CONTRACTUAL LIABILITY. MORAL DAMAGE. NO OCCURRENCE. The institution of a selection process for a worker for the job to be performed is part of the employer’s power of choice and is a preparatory act which, in itself, is not binding on the subsequent drafting and perfecting of the contract, because it does not have the legal character of binding promises. If, in the present case, the plaintiff has not discharged his burden of proving the unlawfulness of the defendant’s conduct or the occurrence of any moral damage, the reparation claim is undue. Appeal dismissed. (TRT-1 – RO: 7743920115010342 RJ, Rapporteur: Mery Bucker Caminha, Date of Judgment: 19/03/2013, First Panel, Date of Publication: 04/04/2013)
TRT-PR-17-08-2012 EMENTA: INDEMNIFICATION FOR MATERIAL DAMAGES AND COMPENSATION FOR MORAL DAMAGES. PRE-CONTRACTUAL LIABILITY. PROMISE TO HIRE NOT PROVEN. The burden of proof with regard to the promise of employment was on the claimant, as it was a fact that constituted his right, from which he did not extricate himself to his satisfaction. Furthermore, there is no illicit act when the company fails to hire an employee whose health examination indicates incompatibility with the job on offer, since this measure protects its own rights, those of the community and those of the worker. In order for the duty to indemnify to arise, there must be robust proof of the unlawful act committed by the defendant, the damage resulting from that act and the causal link between the two, and in the case under examination, the company’s unlawful conduct that evidences a breach of objective good faith has not been demonstrated. (TRT-9 2072011594908 PR 207-2011-594-9-0-8, Rapporteur: ALTINO PEDROZO DOS SANTOS, 4A. TURMA, Date of Publication: 17/08/2012)
In this way, it can be seen that the judgment of claims of this kind falls within the competence of the Labor Court, and the Magistrate must assess whether there was in fact malice in the interruption of negotiations, as well as damage to be repaired.
