Driver has an employment relationship with an application, judge decides

By understanding that there was a relationship of employment, personality, non-eventuality, onerousness and legal subordination, the Labor Court of a city in the interior of Goiás recognized the employment relationship of a driver with the digital platform for which he worked.

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The driver, from Inhumas (GO), filed a lawsuit in the Labor Court for the recognition of the employment relationship with the company, which provides services through an application, after it banned his registration, without prior notice and without the possibility of defense, according to he.

The worker claimed to have been left without salary and unable to meet his financial commitments and that the company did not justify the blocking of services and pointed out the requirements that, for him, prove the employment relationship between the parties.

For the worker, hiring an application is a supposed civil relationship, since decisions are taken unilaterally by the company and registered drivers cannot negotiate the fixed clauses.

He stated that the service provided is customary and onerous with “weekly payments” made by the platform. He pointed out that the company uses its directive power to define service parameters, remuneration amounts and the driver’s profile.

Among other points, he also stated that the company controls all paths made by the driver, sends notifications in case of route changes, stop times and intervals between races, in addition to not accepting that another person drives the registered driver’s car.

Recognition of bond
The first degree judgment recognized the employment relationship after considering that the evidence gathered points to the presence of the employment relationship requirements. He considered that digital platforms belong to the so-called 4.0 industry, which incorporates new technologies and data processing into the production environment, modifying work processes.

The Inhumas Labor Court (VT) considered that Brazil is a member of the International Labor Organization (ILO), and must ensure minimum levels of labor rights with a view to promoting human dignity and in accordance with the Brazilian constitutional text. Therefore, changes in the traditional model of work, caused by the growth of the economy of applications managed by artificial intelligence, cannot, according to the sentence, promote social regression and the precariousness of work that affect the way of life of the worker.

The labor judge pointed out that it is uncontroversial that the worker registered on the company’s platform and provided services in person, without being replaced. She understood that the registered “partner driver” needs to log in to the platform, identifying himself, so that he can start providing services. She understood evidenced the legal relationship marked by personality, characteristic of an employment contract.

Regarding the non-eventuality requirement, the magistrate’s analysis is in the sense of continuity, intermittently or continuously. For her, the freedom to comply with the working day is not an obstacle to the recognition of the employment relationship.

“Fixed or flexible hours do not define the subordinate employment contract, in fact, there are several types of employment contracts that allow flexible hours and are subject to inspection and control by the employer”, he explains. The judge understood that, in the analyzed case, the number of hours worked was effectively monitored by the platform and all data is stored in the application, as well as the number of completed trips, the acceptance and cancellation rate.

The decision points out that the legal relationship between the driver and the platform was not free, with an onerous intention. He highlighted that the transport price to be paid by the passenger is defined by the company and that it could be changed, at the exclusive discretion of the platform, at any time. He understood that it was an adhesion contract, in which the negotiation possibility constitutes a “true decoy”, as it imposes an exclusive burden on the driver. He highlighted that there is no possibility of competition between registered drivers, since the choice of driver who serves the customer is made by geolocation criteria and determined by the platform.

“There is, therefore, no negotiation between drivers and passengers, or between drivers and the application, which unilaterally fixes the price and the percentage of that price that fits it”, highlighted the magistrate. The sentence also points out that the digital platform remains at least seven days with the amounts received from customers and that, even in transfers via PIX, it keeps the money without transferring it to the provider.

“Therefore, the payment made was salary for work or service, which, as with commissions, is a variable salary modality consisting of a percentage of the value of the result of the activity performed. Thus, the requirement of onerousness is present”, he concluded. .

When analyzing legal subordination, the magistrate considered that, as a structuring concept of the employment relationship, its application was expanded to include homeworkers, intellectual workers, senior employees and, more recently, telecommuting, starting to be exercised also by telematic and computerized means.

In the context of the process, the magistrate understands that the use of technology facilitates both the sending of orders to the worker, guiding him on how to carry out the work, and the inspection of the place and the way in which the activity is carried out through the use of, for For example, geolocation tools, capable of pinpointing the location and speed of each vehicle in the fleet.

The judgment of the VT de Inhumas recognized the existence of an employment relationship between the driver and the transport company and, given the absence of an entry in the Employment Card (CTPS), determined that the company make a note of the author’s CTPS with a date of admission on 01 /12/2021, as a driver, variable salary per commission, and dismissal date on 11/30/2022.

Considering the termination of the employment contract due to dismissal in the modality “without just cause”, the company must pay indemnified prior notice, vacations, thirteenth salary, release of FGTS deposits and indemnity of 40%. Overtime and moral damages were also granted. With information from the press office of TRT-18.

Process 0010232-75.2023.5.18.0281