A decision of the 13th Labor Court of Fortaleza is accepted employment relationship the relationship between a app driver and the company Above. In the judgment, Labor Judge Vladimir Paes de Castro assumes that the parties had a professional relationship characterized by interrupted work. The decision can be appealed.
According to the Regional Labor Court of Ceará (TRTCE), the decision annulled the partnership/service agreement and condemned the technology platform to write off the work portfolio and pay severance pay in the period between March 2018 and April 2021, as the employee without valid reason and without the right to a full defense in addition to compensation for the worker was dismissed R$ 5,000 for moral damagesbecause of the arbitrary termination and violation of the Basic Data Protection Act.
According to the judge, this type of contract would be a new form of labor exploitation in which the alleged service providerin this case the driver, has no advantage and no freedom of contract.
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“Usually these are subordinate workers like everyone else, subject to the directives of the digital company, working long hours a day in favor of the platform, making a living from their work as app drivers, whose economic activity is entirely managed by the algorithm”, he stressed.
In the filing, Uber claimed to be “only an intermediary of the service provider’s meeting with the passenger.” Also, the fact that the driver receives a higher percentage of the amount paid by the customer (between 75% and 80% according to the company) would decharacterize the employment relationship, according to the company.
“The higher percentage must of course be attributed to the driver, who, in addition to performing the work, usually works dozens of hours a week in a subordinate manner, nor must bear all the costs associated with the provision of the vehicle,” said the magistrate in its decision on the company lawsuit.
What does Uber say?
When asked by OPOVO, Uber said it intends to appeal the decision, which it sees as “an isolated understanding and in contrast to other cases already judged by regional courts and the TST (Superior Labor Court) the most recent of them in the November 2021”.
“In recent years, the various instances of the Brazilian judiciary have formed consistent jurisprudence on the relationship between Uber and its partners, pointing out that there are no longer any legal requirements for the existence of an employment relationship (stressful, habitual, personality and subordination). More than 2,500 decisions by district courts and labor courts recognize that there is no employment relationship with the platform,” the company said in a statement.
It also underscores that partner drivers are not employees or provide services to Uber: they are independent professionals hiring the digital attendant technology offered by the company through the application.
“The driver is free to choose the days and times for using the application, whether to accept trips or not, and even after that there is still the option of canceling. Because there are no targets, no minimum number of trips, there is no boss to oversee the service, there is no exclusivity obligation in hiring the company, and there is no minimum hours requirement.
The company says TST has conceded in five lawsuits that there is no employment relationship between Uber and its partners. Among them the one in November 2021, in which the 4th Panel lifted the binding on condition that drivers work “without customary and autonomously” and that there is no “legal subordination between the application and the worker”.
jurisprudence
The Ceará Labor Court is not the first to understand that there is an employment relationship between drivers and transport app companies. Similar decisions were made in European countries that created international jurisdictions modeled on Germany, the Netherlands and the United Kingdom.
This new jurisprudence understands that it is a new form of exploitation of human labor, in the context of the socalled Industry 4.0. The Court of Justice of the European Union has already recognized that Uber’s primary economic activity is the provision of transportation services and not a sharing economy platform.
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