The myth of worker protection.

(Britain Brasil Magazine – March 2001 – page 13)

Over the years, it has always been said that labour tribunals favour the worker. Things have been structured thus for a number of reasons. Not least amongst them is the tendency to emotionally favour the under-dog in the capital/labour or employer/employee relationship. There is also a tendency for companies to always look for ways in which they can undermine any economic advantages their contracted workers may have

Based upon these and other arguments, a culture falsely understood to be protective of the employee was born, and consequently so was the inclination for sentences and decisions to be made which were not in the interests of the company in those cases where they were called upon to defend themselves in tribunals focusing on ex-employee complaints.

The employer therefore thinks that any argument used or which may be used will have little effect on the eventual outcome. The truth is that the company will be constantly and notoriously hounded by certain judges raiding a company’s bank account in order to provide the claimant with capital that was wrongly withheld from him by an unscrupulous employee.

That is the situation as it stands. However, one must wonder whether this is really the modus-operandi of labour tribunals in Brazil. I dare to disagree. In fact, the labour tribunal has always tended to favour the employer – not the worker. Let us suppose that an employee has been dismissed without having received any compensation. His first attempts to receive a tribunal hearing may not occur for up to months after the claim’s submission. If it doesn’t go through at this juncture, it may be postponed until the next pre-arranged session which may be months even years after the proceedings were initiated.

In a situation like this, the employee will not receive any form of payment or income following his dismissal. With a judgement date being set for the future, it may be an unlimited number of years before a decision is made. If we recognise that the process generally takes up to three years to be resolved, which doesn’t necessarily mean that all roads of legal recourse will have yet been pursued, the law can call for yet another year of the process and, if the company in that time declares itself bankrupt for instance, the former-employee in question may have fought for up to an average of seven years only to walk away with nothing – in spite of having won.

It is extremely easy therefore, to recognise that it is in the interests of the company for the worker to have spent time in the courts. The company will have good lawyers behind it and will be able to make justifiable mass or individual dismissals, gradually, without having to budget for redundancy payments that would have provided a substantial economic base for its former-employee’s family, and without which can result in their social and psychological ruin.

Even so, seen from the other angle, we have former-employees being represented by un-orthodox lawyers who demand larger or nonexistent claims upon work supposedly undertaken. This generally happens without the client’s knowledge – he remaining ignorant to the possibility of receiving an acceptable payment if more is asked for in the first place. There are therefore those unscrupulous professionals who further complicate the avenues of justice in the world of the labour tribunal.

If the complaint is backed up by sufficient evidence from the plaintiff during the preparatory stages or if the evidence is supplemented by truthful statements subsequently taken from witnesses, the claim will be granted in favour of the plaintiff as the injured party in that particular case.

However, imagine a company which possesses an organized, active and preventive human resource department which abides by and works within the labour, economic and social laws, attentive to the needs of its employees and maintaining a good relationship with the unions and clients. This company would have nothing to fear should a claim be cooked up in a legal kitchen mixing fact and falsehood and then brought against the company. Indeed the decision would not be surprising but correct.

Can the two parties arrive at an agreement? Only within the hypothesis that something within the working relationship was misunderstood by the human resources department as well as by the worker who may not have understand certain clauses within his contract. Small, unintentional mistakes can obviously occur so at this point the claim has to be re-evaluated and an amicable agreement arrived at which is understandable and leaves no room for doubt.

Luiz de Andrade Shinckar is founding partner and consultant of legal company Shinckar and Lawyers Associates, an active member of the São Paulo Institute of Lawyers and a member of the British Chamber of Commerce Legal Committee.

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