The Federal Supreme Court (STF) through the decision of rapporteur judge Minister Gilmar Mendes, reviewed the decision of the Superior Labor Court (TST) that held a company of the same economic group responsible, without it having had any participation during the process, having only been included as a defendant in the execution phase.
According to the rapporteur, since the entry into force of the New Code of Civil Procedure (CPC) in 2015, holding a company in the group as debtor only in the execution phase violates the rights to adversary proceedings, full defense and due process of law.
This understanding is contained in paragraph 5 of article 513 of the CPC, which provides that “enforcement may not be promoted in the face of the guarantor, the co-obligor or the co-responsible person who has not participated in the acknowledgment phase”.
Gilmar Mendes (STF Minister) also stated that the procedure adopted by the TST was mistaken, as the unconstitutionality of the impediment contained in the CPC should first be discussed and only after this step, could the group company be included in the execution of the process.
We emphasize that the content of this decision has no binding effect or retroactive application, since it is a decision that determines that the unconstitutionality of the rule is discussed and not a decision that recognizes the unconstitutionality of the rule.
Finally, it is important to highlight that this decision is very important to increase legal certainty for companies, so that there are no surprises with unknown executions.
Further information can be obtained from our Labor team.
Laura Lanser Bloemer GUARNERA ADVOGADOS