(PT) STJ decides that application driver is self-employed - RMS Advogados
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STJ decides that application driver is self-employed


Understand the case: the driver filed, before a Special Civil Court, an action of obligation to make compensation with compensation for material and moral damages in the face of a legal entity under private law.

The Second Section of the Superior Court of Justice in Conflict of Jurisdiction no. 164.544 / MG defined that the Common Justice is competent to analyze and judge facts involving drivers of private transport applications, due to the lack of employment relationship and, consequently, understood by the absence of a labor relationship between the driver and the company that owns the application .

Understand the case: the driver filed, before a Special Civil Court, an action to compel compensation for material and moral damages in the face of a private legal entity, owner of an application, on the grounds that his account had been suspended, with the justification of the company for irregular behavior and misuse of the application, making it impossible for him to exercise his activities as a driver, causing, in theory, material losses for having leased a vehicle to perform the service, claiming, in this way, the reactivation of the account in the application and reimbursement for material and moral damages. The JEC declined its competence, understanding that it was an employment relationship, the records were sent to the labor court, which declared itself equally incompetent, giving rise to the conflict of jurisdiction.

The CC was reported by Minister Moura Ribeiro, who expressed an understanding according to which the legal nature of the application driver’s claim is not associated with an eventual employment relationship, nor to the receipt of funds of a labor nature, but of a digital intermediation contract. for the provision of services signed with a company holding an application, of a civil nature, in which the drivers, executors of the activity, act as individual entrepreneurs, with no employment relationship with the company that owns the platform, being, therefore, the competent State Common Justice to judge the achievements involving application drivers and companies holding the technological solution.

Minister Moura Ribeiro also understood that application drivers do not maintain a hierarchical relationship with the company that owns the application, “because their services are provided in an eventual manner, without pre-established schedules and do not receive a fixed salary, which mischaracterizes the employment relationship” , considering that removed some of the assumptions of the employment relationship, the work is characterized as autonomous or occasional. It was clarified, therefore, that these technological tools fall under the shared economy paradigm, in which the individual private paid transport of passengers (art. 4, X, Law No. 12,587 / 2012) is a private activity for the sharing of goods between people, through a computerized system in a peer market.

Wilson Sales Belchior – He is a partner at Rocha, Marinho E Sales Advogados. Graduated in law from UNIFOR, specialist in Civil Procedure from UECE, MBA in Business Management and master in Law and Conflict Management at UNIFOR. He also has a short course in conflict resolution at Columbia Law School in the United States. At the same institution he participated in an advanced research series. Lecturer, university professor in postgraduate courses in different states and author of several articles and books, published in magazines, newspapers, news portals and publishers of national circulation. Federal Advisor of the OAB (2013-2015). Vice-president of the National Corporate Advocacy Committee of the OAB Federal Council (2013-2015). Member of the National Bar Association Commission of the OAB Federal Council (2010-2012). Member of the Artificial Intelligence Coordination of CFOAB (2018). He is currently a Federal Counselor elected for the 2019-2021 term and President of the National Banking Law Commission.

Source: ClickJus: https://www.clickpb.com.br/blogs/click-jus/clickjus-stj-decide-que-motorista-de-aplicativo-e-trabalhador-autonomo-267692.html?fbclid=IwAR2QxFt3MSAClNX- iam5ZU9GS5dKDuxEqwZW7S1fJaVg922cyecoYBS3h0o


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