Last week, a public cleaning company in the interior of São Paulo was sentenced by the last instance of the Labor Court (TST, or Superior Labor Court) to pay a compensation of R$ 320,000 to the widow and children of a street sweeper victim of fatal run over during service. The person responsible for the tragedy was a driver who participated in “a rift” in the streets of the city of Brangança Paulista, 88 km from the capital.
The fact that a private company – which had nothing to do with the negligence of the driver responsible for the employee’s death – has to bear a cost of more than R$300,000 in compensation, which adds to all the procedural costs it has faced so far , led to a series of criticisms of the Labor Court from conservative politicians in the municipality.
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As for jurists specialized in the area heard by the report of the Brazil in fact, however, what was done was simply justice and compliance with the law, with the sad caveat that the legal episode had to go the long way to the TST for it to receive this outcome.
Understand the case: the employee who dies on the job and the employer’s “strict liability”
The accident occurred in April 2017, around 6:30 am. The street sweeper, who had worked at the company for 15 years, was carrying out his work at the median of a road, when he was hit by a vehicle guided by an 18-year-old boy who was fighting for a “racha”. The driver lost control of the vehicle and headed towards the street sweeper, who was trapped between the car and a lamppost and died on the spot.
The company regretted the worker’s death, but rejected any responsibility for the accident, claiming that it had nothing to do with the episode “and the damages generated”. It was, in his view, an “absolutely fortuitous and force majeure” case, resulting from the fault of a third party. In its argument, Embralixo highlighted that the driver who killed the employee did not have a license, was drunk and practiced “racha”.
But that did not understand the Justice, since the second instance that judged the case. By ordering the company to pay compensation to the employee’s widow and three children, the Regional Labor Court of the 15th Region (Campinas/SP) considered the greater exposure of the worker who performs the cleaning service on public roads, where there is traffic of vehicles, including at high speed, at the risk of accidents and being run over.
As for the third party’s fault thesis, the TRT emphasized that this does not exclude what is called a “causal link”, which could exempt the employer from being liable for compensation, as the activity carried out by the company is, yes, at risk. He also highlighted that, in the Environmental Risk Prevention Program (PPRA), it is recognized that the street sweeper is exposed to the occurrence of being run over.
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Convicted in the second instance, the company took the case to the Superior Court, in Brasília. But, for the rapporteur of the appeal by which Embralixo intended to re-discuss the conviction in the TST, Minister José Roberto Pimenta, there is no doubt that the activity performed was at risk.
“As a street cleaner collecting urban waste on public roads, he was subject to all the adversities of traffic”, he pointed out. At this point, the minister recalled that, according to the jurisprudence of the TST, once the strict liability of the employer due to the risk of the activity is recognized, there is no need to prove guilt or intent for there to be a duty to indemnify.
It is up to the company, if it wishes, to seek, in turn, compensation from the driver who ran over its employee.
The decision was unanimous, with the other ministers following the rapporteur’s vote.
Ana Amélia Mascarenhas Camargos, PhD professor at PUC/SP in Labor Law and member of the São Paulo Academy of Labor Law, explains that this is what the law requires, and also explains the reasons for this.
“The Federal Constitution (Article 7) determines that the employer is obliged to pay compensation to the employee who has suffered damage through intent or fault of this employer”, explains the jurist. This is called the subjective responsibility of the company. So it is called because it depends on evidence, it is necessary, to generate the indemnity obligation, to prove that there was a deliberate intention (intention) or negligence (fault) by the company for the accident at work to have occurred.
But that’s not all: “In 2002, the Brazilian Civil Code, in Article 927, adopted the concept of ‘strict liability'”, says the jurist. “The law says that if the activity carried out by a company entails a risk for the employer, the employer’s responsibility does not depend on proof”, explains Ana Amélia. She concludes:
“Thus, if the activity carried out by the employee involves risks or unhealthy conditions, such as that of a street sweeper that can be run over, the employer is strictly liable in case of damages generated by this activity”.
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Drunk driver participating in a split is no reason not to indemnify
Arthur Azeredo, lawyer at the firm Azeredo & Wingester, specialist in Labor Law and Process at FGV (Fundação Getúlio Vargas), highlights the argument used by the company in the process, that it could never be held responsible for a criminal act – that of participating in a “split” between vehicles, even more drunk and without a license – is already completely overcome in Brazilian courts, having been useless and painful for the family the procedural path that Embralixo chose, taking the case to the TST, in Brasília.
“Although the present case is about an accident committed by an intoxicated young man, without a license and participating in a split, the process is about labor issues. Therefore, we should only check whether the company has responsibility and duty to indemnify or not. we have to focus on the activity that it performs”, explains the lawyer.
“Basically, we have a person who is on a public road carrying out garbage collection. As he is on a public road, it is obvious that he is subject to several conditions and events that a vehicle transit location can cause, including that of a thus, the activity is risky,” asserts the specialist.
Azeredo concludes by saying that “the understanding of the company’s duty to indemnify in cases like this is peaceful in the higher courts”, congratulating the TST’s decision, with the expectation that it will be used as an example in future cases, so that other companies are discouraged from evade the obligations that the law gives them.
Edition: Vivian Virissimo