A homologação da transação extrajudicial na justiça do trabalhorecomendações de boas práticas

Resumo

The consensual dispute resolution of conflicts has been encouraged over the last few years, either because there is an exhaustion of the adjudicatory solution promoted by the State valuing the search for a reasonable duration of the process (article 5, inc. LXXVIII, CF/88), or because the solution of the disputes by the interested parties is a way of giving prestige to the autonomy of the parties' will and, thus, to value the principle of human dignity (article 1, inc. III, CF/88). In order to include the alternative of solving the conflict through the use of the consensual dispute resolution obtaining the legal certainty that origin from a judicial decision, Law No. 13,467/2017 (Labor Reform) brought the proceeding of probate jurisdiction to the employment framework, allowing the protagonists of employment relations to execute Out-of-court settlements and submit them for Court ratification. However, right from the beginning, it was noted that there was some resistance by some labor judges to carry out the judicial ratification, especially when the general discharge clause is present. The alternative given by the Labor Courts was to change the content of the clause so that the settlement covered only the portions indicated in the transaction, revealing an intervention by the Court in the autonomy of the parties' will. This study sought to recall the reasons why CCPs, consensual dispute resolution means pre-existing in the CLT, are no longer used, analyzing the incentives existing in the judicial policy and in the Labor Court’ rules in relation to the consensual means of resolving disputes. It addressed the unavailability of labor rights and the segregation between those absolutely and relatively unavailable and the relevance of this analysis in comparison with the legal figures of the transaction and the waiver, reaching the measures provided for in the legislation for the worker’s protection. An empirical-jurisprudential research was carried out within the scope of TRT 2, to map the decisions related to the Out-of-court settlements submitted to ratification to this Labor Court, in order to identify the reasons that lead the judges to defer, reject or partially approve the ratification. Deepening the research, decisions on appeals submitted to the same Court were examined, in order to verify whether the reasons for refusal or partial ratification would be maintained by the Labor Court notably due to the NUPEMEC-JT2 guideline on the restriction to the clause of general discharge. The conclusion was that there is an excess in the guideline issued by the NUPEMEC-JT2, with the general discharge clause in the self-composition submitted to the Court ratification being considered fully valid. At the end, a guideline was proposed as a product of this work, containing suggestions and recommendations to be observed by legal professionals in the elaboration of Out-of-court settlements, with the goal of helping to enhance the chances of their ratification by the Labor Courts, in order to encourage its use as a mechanism for pacifying conflicts arising in labor relations.

Ficha do documento

Tipo

Dissertação

Ano

2021

Instituição

Fundação Getulio Vargas

Fonte

Repositório da FGV

Idioma

Português

Acesso

Não informado

Identificador

oai:repositorio.fgv.br:10438/30327

Palavras-chave

Acordo extrajudicialHomologação judicialConflitos trabalhistasBoas práticasGuidelineOut-of-court settlementCourt ratificationLabor conflictsGood practicesDireitoDireito do trabalho - BrasilMediação e conciliação trabalhistaDissídio trabalhistaSentenças (Justiça do trabalho)