Bruna Zampieri Colpani
Lawyer at Marcos Martins Advogados
The Regional Labor Court of the 24th Region – MS, exempted a company from paying the fine of art. 477 of the CLT, for the installment of severance pay, on the grounds that the weighting must be applied between the right of workers provided for in the legislation and the country’s emergency situation, which affected the economic and financial situation of companies.
In February 2020, the first government actions related to the COVID-19 pandemic began, and a state of public calamity was decreed through Legislative Decree No. 6/2020 – Law No. 13,979/20.
Faced with this emergency situation, companies began to face a precarious economic scenario, resulting in great difficulties in honoring their commitments, especially those of a labor nature. According to IBGE data, among the many consequences generated by the pandemic, 39.4% of companies in Brazil have closed down their activities, finding it very difficult to make the severance payment in accordance with the law, i.e. in a single installment.
In the case in point, the former employee filed a lawsuit requesting that the company be ordered to pay a fine equivalent to one month’s pay (art. 477 of the CLT), on the grounds that the severance pay could not have been paid in installments.
The judge at first instance upheld the application of the fine, based on the argument that the provision is express and exhaustive as regards the deadline of 10 days from the end of the employment contract for payment of severance pay. He also cited article 811-A, also of the CLT, with regard to the absence of the possibility of collective bargaining on the payment of the sums, denying the validity of the collective agreement signed between the company and the category’s union, which provided for the payment of the severance pay in installments.
In the face of repeated lawsuits arising from the situation described, i.e. the actual financial difficulty companies have in paying severance in a single installment, the Regional Court overturned the decision, recognizing the validity of the collective agreement, mentioning article 611-A of the CLT, which contains a merely exemplary list of rights that can be negotiated collectively, and article 611-B, which contains an exhaustive list of rights that cannot be negotiated through collective bargaining, with no mention of the payment of severance in installments.
Thus, the judges of the TRT of the 24th region understood that the form of payment is relatively unavailable and can be negotiated in exceptional cases such as the one presented, since as a result of the pandemic the company was forced to lay off many workers.
There are other cases similar to this in case law, so it can be seen that the Regional Labor Courts have been giving prestige to collective agreements and conventions, analyzing specific cases with caution in order to find intermediate solutions that are fair to all parties in the labor relationship.
This understanding brings greater legal certainty to companies that find themselves in a similar situation to the case cited, in which the judiciary has shown flexibility and awareness in the face of the serious economic crisis triggered by the pandemic.
In any case, it is highly recommended that companies seek legal advice on the correct application of the law, which Marcos Martins Advogados is able and prepared to offer.
