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Labour justice and the humanized employer

Commonly associated with the judgment of actions of urban employees against the companies that employ them, the Labor Court is also responsible for having a special look at small employers, those who do not have an annual budget for contingency of labor liabilities or who often do not have human resources advice to deal with the dilemmas of managing the provision of services of their employees, time management, etc.

Among these employers, the one who certainly suffers the most (emotionally or financially) from a labor conviction is the domestic employer.

Hiring an employee for domestic and non-profit activities (LC 150/05, art. 1), the regular hiring of a domestic employee is often done by the employer by "meeting accounts", within the limit of its monthly or annual financial availability.

Therefore, a conviction in the labor sphere can have a very serious impact on the life of a domestic employer, especially in view of the possibility that the employer's own income may be seized for payment of his employee's labor credits, according to the understanding expressed several times by the Labor Court (CPC, article 833, paragraph 2).

It is for these reasons, among others, that, given the particularities of the domestic employment contract, the legal advice provided preventively to a domestic employer or in the course of a lawsuit can have a major impact on the (intimate and financial) life of the employing family.

In two decisions recently rendered by the TRT of the 1st Region, it was possible to achieve very important results, considering precisely the success in highlighting the particularities that make the domestic employment contract so sensitive.

On the first occasion¹, the TRT upheld a termination for cause applied to a domestic worker. The employee, among her duties, took care of her employer's son when the latter was absent for work. One week, however, she pretended that her own grandson was seriously ill and therefore needed to be absent. For days and nights, she exchanged messages with the employer, who was a doctor, and even sent photos of her grandson and audios, in which she cried about the distress of her family. On one occasion, however, the employer, frightened by an image forwarded by the employee, identified that the photos sent as being of her grandson were available on a certain internet search engine. It was then discovered that the employee was lying about her grandson's health to cover up her absences from work.

Considering the special trust that permeates employment contracts in the domestic sphere, especially those involving the care of the vulnerable (Theme 1 of the TST's Repetitive Appeals), it was recognized that the employee's conduct was serious enough to give rise to the termination of the contract for just cause, since the domestic employer could never again be safe in leaving his child in the care of someone who frivolously lied about the health of his own grandson.

The employee, in this conviction, not only had the just cause maintained, but was also convicted of bad faith litigation, due to her procedural conduct.

In another claim², the TRT of the 1st Region also took a relevant decision by rejecting the claim for compensation for the period of provisional employment guarantee arising from pregnancy discovered after termination. The TRT correctly understood that the resignation request was valid, since the former employee did not prove any defect of consent in her manifestation of will, expressed even "before confirmation" of her pregnancy.

Throughout the proceedings, the employer was plagued with the risk of having to pay approximately one year's salary and the like to a former employee who had resigned and was hastily replaced by another.

In both cases, it is important to highlight, so that we can also humanize the employers, both father and mother, for particular reasons, did not have a support network to keep their children under care while fulfilling their professional obligations, so that hiring domestic workers was a necessity for both their lives.

In other words, the reality portrayed is not that of domestic employers with 10 or 15 employees and several properties, but rather the reality of the middle class that depends, for the maintenance of their own employment relationships, in the constitutional module of 44 hours of work per week, on professional help in a domestic environment.

For these employers, if the cases were resolved differently, the conviction would not only be frightening in the financial context of the contracting family, but would certainly generate a significant shake in the confidence of those contractors.

These two examples are simple demonstrations of how the professional relationship developed in the domestic sphere has repercussions, sometimes much more serious than the proximity that the (electronic) process can reveal, and how legal assistance can help to achieve a fair solution.

Therefore, the judiciary must be aware of these particularities, so that there is balance in the application of the rules, recognizing that the family universe is very different from the business universe, and that the domestic employer deserves to have this look highlighted, without ever discrediting the domestic employee, whose rights must be legitimately guaranteed.

In short, in the same way that the legal system prescribes that small profit-oriented employers deserve distinct attention in the material and procedural universe (LC 123/06, art. 1, II and art. 74-A), domestic employers cannot be treated exactly the same as other employers, and the Judiciary is responsible for this special look, in order to promote a humanized application of the rules of material law and labor process to the domestic employer.

[1] 0100451-51.2019.5.01.0022 [2] 0100284-96.2021.5.01.0011


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