Paloma da Silva Aguiar
Lawyer at Marcos Martins Advogados
As a priority, it is worth highlighting the meaning of the word “preposto”.
According to the mini-dictionary of the Portuguese language, preposto is: “PREPOSTO, s. m. Person who directs a service, a business, by delegation of the competent person; adj. Put before; preferred.”[1]
Article 844 of the Consolidation of Labor Laws – CLT highlights the importance of both the Complainant and the Respondent attending the designated hearing.
“In verbis”:
- Art. 844 – Failure by the complainant to appear at the hearing shall result in the complaint being filed, and failure by the respondent to appear shall result in default of appearance, in addition to confession as to the facts.
It should therefore be understood that, regardless of whether the company is on the active or passive side, it must attend the designated hearing in order not to suffer the legal consequences.
The law, in turn, states that the Employer may be replaced by a manager it trusts or by any other agent[2] who is aware of the fact and whose statements will bind the Employer.
This agent must necessarily be an employee of the Employer, however, in light of Labor Reform No. 13,467/2017, this agent no longer necessarily has to be an employee of the Company, as long as he or she is aware of all the facts that will be dealt with at that Hearing.
“In verbis”:
- Art. 843 (…)
- §Paragraph 3 The agent referred to in Paragraph 1 of this article need not be an employee of the party complained against”. (Included by Law No. 13,467/2017).
Below, we will list the most important items and their comments regarding the position of the representative in a Labor Claim.
- Knowledge
- of the company’s routine.
The representative, whether or not they are employed by the company, must know the company’s entire routine, such as work shifts; breaks between shifts; night work; overtime pay; granting of benefits and payroll deductions; payment dates; procedures for hiring and dismissing workers; medical examinations; among many others.
In this way, it is clear that if the agent is an employee of the company, he will have an easier time understanding all the issues, but if he is not an employee, he will have to study the politics of all the issues in order to demonstrate his ability to represent the company in future hearings.
- Knowledge
- of the routine of the employees and/or workers themselves.
The representative, whether or not they are employed by the company, should be aware of the workers’ routines in order to be prepared for their testimony at the hearing.
Examples include: checking on the use of personal protective equipment (PPE); checking on the use of the intra-workday break as a whole; checking on payments and benefits; checking on the use of any uniforms; among many others.
- Study
- of the Labor Process.
The foreman, whether or not he is employed by the company, should study the labor lawsuit, precisely in order to learn about the claims made by the Complainant.
And even if the Employer is at the center of the lawsuit, the representative should still be aware of the lawsuit, so that he can be sure of his position when he is questioned by the Court during the hearing. Example: Action for Consignment of Payment.
- No
- contradict yourself when testifying at the hearing.
The agent, whether employed by the company or not, must give clear answers, without any signs of doubt, in order to avoid contradictions in their testimony.
For example: Inform the court of one situation, and when asked again, inform of another situation.
- No
- Confess in favor of the worker.
The agent should never confess in favor of the worker, precisely because he represents the Employer, regardless of whether he is an employee of the latter or not.
- No
- say that they “don’t know” or that they “don’t know anything about it”.
The witness, whether or not they are employed by the company, cannot tell the court that they don’t know the answer to any question, or that they are unaware of any particular issue being dealt with.
It is important to say that if the agent uses one of these options, the so-called “confession ficta” will occur, since the judge can clearly understand that there was a refusal to testify, according to the specific understanding in article 386 of the New Code of Civil Procedure – NCPC[3], which is subsidiarily applicable to Labor Procedure.
Along the same lines, the understanding highlighted by the Regional Labor Court – TRT of the 04th Region, “in verbis” :
- “EMENTA. FICTITIOUS CONFESSION. IGNORANCE OF THE FACTS BY THE AGENT. Under the terms of §1 of art. 843 of the CLT, the agent is someone who must necessarily have knowledge of the facts. Thus, the statement that he “doesn’t know”, when questioned about a relevant and controversial fact, amounts to a refusal to testify, resulting in (sic) a false confession. Defendant’s appeal dismissed”. (Case No. 0020159-68.2014.5.04.0702 (RO). TRT4, 11th Panel. Rapporteur: Flavia Lorena Pacheco. Date of judgment: 06/09/2017).
- No
- failing to attend the scheduled hearing.
The agent, whether employed by the company or not, may not fail to attend the designated hearing, under penalty of causing various consequences for the company, as highlighted above.
The company can even replace the previously appointed agent, requesting a deadline from the court at the hearing to attach a new letter of representation, so as not to be punished.
We can therefore conclude that it is extremely important to ensure that the agent or manager appointed by the company is present at the designated hearing, and that they are aware of all the facts in order to carry out their role correctly, without harming the bidder.
[1] BUENO Silveira. Minidicionário da Língua Portuguesa. [S.l.]: FTD, 2018.
[2] Section II – The Trial Hearing. Art. 843, CLT. (….)
§Paragraph 1 – The employer may be replaced by the manager, or any other agent who has knowledge of the fact, and whose statements will bind the proposer.
[Art. 386 – When the party, without justifiable reason, fails to answer what is asked of him or employs evasions, the judge, considering the other circumstances and the evidence, shall declare in the judgment whether there has been a refusal to testify.
