20/03/2013
Employee can not be hired as a legal entity Autor: TRT 3ª Região Minas Gerais
Corporations or CLT? Many workers in Brazil believe the way by hiring one of these modalities is an option of the company that hires them. Is not. If the service is personal, not possible, costly and subject, ie, in the manner prescribed in Article 3 of the Labor Code, the relationship is employment. In this case, the employer must pay all duties owed by law, as 13th salary, vacation, FGTS, etc.. Opening corporate employee for service as it is not supported by legal force. The fraud called "pejotização", has been opposed by labor courts for some time.
Recently, 1st Class of the TRT-MG decided to keep the sentence that convicted a diagnostic imaging center to recognize the employment relationship with a plaintiff who worked that way. He had been an employee of the defendant and after he was discharged without receiving the severance settlement, opened a service company radiologic technicians to continue providing the same services. In analyzing the case, the judge acknowledged sentenciante continuity of employment and even condemned a company of ophthalmology and radiology to respond, along with the diagnostic center, because of the clear link between the two companies.
The judge called Erica Pires Aparecida Bessa was the rapporteur of the appeal by the defendants. By analyzing the process, she had no doubt the numerous frauds committed by the group. As noted in the voting, the actual owner of the center diagnoses admitted called professionals, including the plaintiff, to form a company to provide services. The idea came after the company learned he would have to leave the hospital where the services performed and realized he could not afford, or with the payroll of employees or terminations with them.
For the judges, it was clear that the constitution of the company aimed to defraud the worker labor legislation. The goal was even evade the duties owed to the employee. The magistrate explained that the case portrays the phenomenon known as pejotização legally work. According pondered, the practice is illegal, not just harm property rights of the employee, but also for hurting his human dignity, fundamental rights expressed in the Constitution. The Rapporteur drew attention to the coercion practiced by the employer in such cases. It uses a legal instrument, which is the provision of legal services per person, to compel the employee to resign labor rights. The employer knows that the employee will accept, because after all he has no choice and must ensure their livelihood.
Even as the magistrate noted, the evidence revealed that the work occurred in the manner specified in Article 3 of the Labor Code, as it is evident from the employment relationship. She reminded that what matters for labor law is the reality experienced by the parties. Therefore, the existence of a contract for services involving legal entity formed by the complainant, does not preclude the possibility of recognition of the employment.
With these considerations, the magistrate applied Article 9 of the Labor Code, which considers null and void the acts performed in order to distort, prevent or circumvent the application of CLT, and decided to uphold the decision of Grade 1. The Panel of judges followed the understanding.
