18/12/2020

By Fabiana Aparecida da Silva

According to a survey carried out by ConJur, companies from various sectors are seeking to hold the State accountable for the dismissal of employees due to the shutdown during the pandemic.

Companies in the food, accommodation, textile and transportation sectors make up the majority of those seeking to hold the State liable. Employers allege financial losses resulting from the suspension of activities, imposed by the State during the COVID-19 pandemic, resulting in the inability to pay the severance pay of dismissed employees.

Employers seek the application of the “prince’s act” in specialized courts, a situation provided for in article 486 of the Consolidation of Labor Laws, which provides for the State’s liability to pay compensation for the determination of temporary or permanent suspension of activities motivated by an act of municipal, state or federal authority.

The requests are being denied in Labor Courts across the country, since the magistrates have understood that the prince's fact does not apply in a pandemic situation, since the State has adopted measures, including strikes, always in compliance with the recommendations of the WHO (World Health Organization).

In order for the employer to claim that the “act of the prince” has been established, it is necessary to prove that its activities have been completely halted and that there was no alternative but to dismiss the employees. It is also necessary to prove that the economic and financial difficulties did not occur prior to the pandemic. With the programs instituted by the federal government (suspension of the employment contract, reduction of working hours and granting of vacations), this proof is more complicated.

In a decision handed down in case number 0010635-68.2020.5.15.0043, which denied the request to apply the “prince fact” to a chain of Mexican restaurants, the rapporteur judge Edison dos Santos Pelegrini of the Regional Labor Court of the 15th Region, highlighted that: “It is not a discretionary act of the administration aimed at interest or some advantage. There is no need to talk about the Public Authority being held liable for termination labor obligations.”