Monique Vieira Lessa, lawyer at Marcos Martins Advogados.
The 12th Panel of the Regional Labor Court of São Paulo (2nd Region), in granting an appeal related to a withdrawing partner, so called ex-partner, held that he can only be included in the labor lawsuit as liable for the claim if the request for inclusion occurs within two (2) years of the registration of his withdrawal from the company.
The panel’s reasoning was based on the dictates of the Civil Code, which establishes, as a rule, that the legal entity is not to be confused with the person of its partners. Therefore, even if the labor lawsuit against the legal entity occurred within the two-year period for the withdrawal of the former partner, the request for the inclusion of the withdrawing partner in the liabilities should be the milestone for counting the limitation period.
The 12th Panel’s decision is in line with the most recent case law, which holds that the withdrawing partner’s subsidiary liability for debts incurred or constituted during the time he was a member of the company is up to two years from the registration of his withdrawal from the company, since the exception provided for in article 10-A of the CLT only applies to withdrawals occurring as of 11/11/2017, with the advent of Law 13. 467/2017, popularly known as the Labor Reform, and the rules of the Civil Code must be applied, for legal certainty, to previous cases.
Thus, what commonly happens in labor lawsuits, already in the execution phase, when the employee is unable to satisfy his claim against the employer-company, is to request the inclusion of the partners and former partners who were on the company’s board at the time the lawsuit was filed, in order to hold them responsible for paying the debt acquired by the company.
However, partners are often sued years after they left the company, as in the case of case no. 1001415-73.2016.5.02.0320, which gave rise to the decision in question. The withdrawing partner was included through the legal personality disregard incident in 2018, but his withdrawal from the company took place in 2012, when the new rule brought in by the Labor Reform was not yet in force.
The 12th Panel granted the appeal of the ex-partner, who appealed against the decision of the lower court, which had ruled that he was liable, reforming the original decision to exclude the withdrawing partner from the liability side of the case, fully exempting him from liability for the claim, since the filing of the labor claim directly against the partner or the redirection of the execution must respect the term established in art. 1003 of the Civil Code and art. 10-A of the CLT, avoiding the ad eternum liability of the ex-partner.
It is important to note that this decision is not binding, i.e. it should not be observed by other judicial bodies in this matter, so specialized legal assistance is essential to help business owners who find themselves in similar situations, always seeking the best strategy in order to protect their assets.
