The Regional Labor Court of the 4th Region recognized the employment relationship between an Uber driver and the racing platform per application. Upon understanding that the employee creates a relationship of dependence with the company, which has full control and decision-making power and inspection, the 8th Panel of TRT-4 ordered Uber to indemnify the victim in R$ 1 million for social damages.
The driver filed a lawsuit against Uber for claiming to have been dismissed by the company without just cause. Therefore, the autonomous asked the TRT-4 to recognize the labor link with the platform, in addition to demanding the payment of compensation for having been blocked from the application.
The driver’s request was dismissed at the lower court. But in the second instance, the 8th Panel granted the appeal filed by the driver. Rapporteur Marcelo Ferlin D’Ambroso, the judge of the case in the court, highlighted that the difference between the self-employed and the salaried employee with a bond is due to the absence of subordination and the non-possibility of the service provided.
Driver’s own expense does not remove bond
The decision of the lower court recognized the non-possibility between the driver and Uber, but claimed that there was no subordination in the employment relationship, considering it “fragile”, since the self-employed in this case is evaluated by passengers, and not by the platform .
However, Ferlin D’Ambroso reassessed the aspect of subordination: for the magistrate, the driver’s activities reinforce Uber’s social objective, which constitutes an employment relationship. The fact that the employee uses his own pocket money to spend on gasoline and vehicles does not attest to any independent relationship between the self-employed and the company, because such conditions would be imposed by Uber.
The company is also responsible for remunerating the drivers’ work. It is also up to Uber to determine who can or cannot register on the platform, how long the person can drive and, finally, whether or not they can be banned; Uber even chooses the reasons why it can suspend the self-employed.
TRT-4 magistrate criticizes “uberization”
The judge also pointed out that the so-called “uberization” of work — which not by chance includes the name of the company, says Ferlin D’Ambroso — maintains the same elements that make up a normal employment relationship, despite allegedly passing through a relationship of work that places the employer in the position of “self-employed” or “micro entrepreneur”.
Ferlin D’Ambroso, magistrate of the TRT-4, writes in the decision:
Therefore, the only thing that changes is the mask, the fraud borrowed and perfected by the algorithm that tries (and often successfully) to confuse people in order to evade respect for Human Rights at Work and disregard social legislation. Obviously, the way in which services are provided does not denature the essence of the employment relationship, based on the exploitation of work on behalf of others, as the means of production remain in the ownership of the platform. In other words, there is nothing new about this, other than the fraudulent new method of computer engineering to mask the employment relationship.
Uber hurt the driver’s human dignities
The magistrate concludes that Uber also practiced social dumping — reason why the company must pay the compensation of R$ 1 million, a fine that will be reverted to a philanthropic institution chosen by the Public Ministry of Labor (MPT). Ferlin D’Ambroso points out that Uber lacked the human dignity of the worker, in an attempt to significantly reduce production costs. This generated what the magistrate calls “illegal competition”.
The decision of the TRT of the 4th region to recognize the employment relationship between Uber and one of its drivers is in line with the words of the president of the TST (Superior Labor Court), Maria Cristina Peduzzi. She, in an interview with UOL, defended that self-employed registered on the company’s platforms — but also on other services per application, such as iFood and 99 — can go to court if they feel aggrieved. The minister also defended that these workers have minimum rights.
To Techblog, Uber sent the following position regarding the TRT-4 decision:
Uber clarifies that it did not have access to the decision mentioned by the Conjur website, since no judgment had been published by the TRT of the 4th Region at the time of the report, so it is strange that the document was released to the press before the legal rite was complied with. to make the parties aware of the outcome of a legal proceeding.
Considering that the aforementioned content is true, as soon as it is aware, the company will appeal the decision, which represents an isolated understanding and contrary to other cases already judged by the Regional Court and by the TST (Superior Labor Court) – the most recent of them in the may.
By refusing the agreement signed between the parties, the 8th Panel overrides the express will of its jurisdictions and completely disregards the directive of the Labor Court in preference to the consensual solution of conflicts. Uber’s appeal will also present all the facts necessary for the annulment of the assessment, applied by the Class without any request in the process and based on apparently ideological arguments. In contrast to the opinion expressed by the rapporteur, since arriving in the country, the Uber platform has intermediated trips that resulted in BRL 68.4 billion in income for drivers and delivery partners, in addition to having collected more than BRL 4.2 billion in taxes to public coffers.
In recent years, the various instances of the Labor Court have been building solid jurisprudence confirming the fact that there is no employment relationship between Uber and partner drivers, pointing out the lack of onerousness, habituality, personality and subordination, requirements that would configure the employment relationship . Across the country, there are already more than 1,270 decisions by Regional Courts and Labor Courts in this regard, and there is no consolidated decision that determines the registration of a partner driver as an employee of Uber.
About the employment relationship with drivers, Uber says:
The partner drivers are not employees or provide services to Uber: they are independent professionals who hire the digital intermediation technology offered by the company through the application. Drivers freely choose the days and times to use the application, whether or not to accept trips and, even after that, there is still the possibility of cancellation. There are no goals to be met, there is no minimum number of trips required, there is no boss to supervise the service, there is no obligation of exclusivity in hiring the company and there is no determination to comply with the minimum working hours.
The TST has already recognized, in four judgments, that there is no employment relationship between Uber and its partners. In the most recent one, the 5th Panel ruled out the hypothesis of subordination in the driver’s relationship with the company, since he can “turn the application on and off whenever he wants” and “make himself available, at the same time, for as many applications of travel desired”.
In March, the 4th Panel unanimously decided that the use of the application does not constitute a link as there is “ample autonomy for the driver to choose the day, time and way of working, and that he can turn off the application at any time and for as long as he deems necessary, without no binding to goals determined by Uber”.
A similar understanding has already been adopted in two other TST judgments in 2020, in February and September, and also by the Superior Court of Justice in judgments since 2019 – the most recent one was published a few weeks ago.
With information: Legal Consultant