Technician Hired in December 2019 Secures Termination from Company Over Unpaid Overtime, as TST Supports Employee in Landmark Ruling

He worked from 7 AM to between 6:30 PM and 9:30 PM, Monday to Saturday, without being compensated, and the Fifth Panel of the Superior Labor Court ruled that such a case allows for indirect termination: the contract ends due to the employer’s fault and the worker leaves with the payments due to a dismissed employee.

The TST announced the decision on September 15, and the ministers of the Fifth Panel voted unanimously, closing the discussion on this specific contract.

The worker is a trainee technician hired in December 2019 by Procisa do Brasil Projetos, Construções e Instalações, a company that provides services to Claro S.A.

His role involved maintenance, installation, and customer support, typically performed on-site, with work orders in hand and schedules that concluded when the last visit ended.

The contracted hours were 7 hours and 20 minutes, but actual working hours exceeded 14

According to the collective bargaining agreement of the category, the established work hours were 7 hours and 20 minutes daily and 44 hours weekly. This was the agreement on paper.

What he claims to have fulfilled is quite different: starting at 7 AM and finishing between 6:30 PM and 9:30 PM, Monday to Saturday, without any overtime appearing in his payments.

The discrepancy is not just a matter of a few minutes. It amounts to an extra half shift per day, repeated over years of his contract.

The company claimed all hours were compensated through a time bank

The defense did not deny the existence of overtime. It argued that the extra hours were compensated through a time bank, thus not needing to be reflected in the paycheck.

Still, this was the very argument that convinced the lower court. The judge from the 2nd Labor Court of Jundiaí, São Paulo, denied both the overtime claims and the indirect termination.

According to the ruling, despite the lack of payment, the compensation was deemed to exist and resolved the matter.

The Regional Court invalidated the time bank due to a signature issue

In the ordinary appeal, the Regional Labor Court of the 15th Region examined how the time bank had been established, which led to its invalidation.

The collective agreement of the category specifies that the bank is only valid if there is authorization in a collective agreement signed by the company and the union. This agreement did not exist.

Therefore, without the signature, the compensation system cannot stand, and the hours worked beyond the contracted time revert to being what they always were: owed overtime.

The Regional Court then granted payment for the extra hours.

Nonetheless, the Regional Court did not find a serious fault on the part of the company

Here, the case divides. While recognizing that the company owed the hours, the TRT-15 rejected the technician’s request for indirect termination.

The regional understanding was that failing to consistently pay overtime does not constitute a serious enough error to justify terminating the contract due to employer fault.

In other words, the company would pay the overdue hours and the relationship would continue as it was.

At the Superior Labor Court, the reporting judge took the opposite direction

There was a petition for review, which was assigned to Minister Morgana de Almeida, who voted in favor of recognizing the indirect termination and granting the corresponding termination payments.

The reasoning was based on three points. The Brazilian Labor Code (CLT) provides for this type of termination when there is a violation of labor rights, and the case fit this hypothesis.

Furthermore, compensation for overtime work is a constitutional requirement, as outlined in Article 7, Item XVI of the Federal Constitution, and is not a discretionary act of the employer.

Finally, the conduct was not isolated. It was ongoing, which entirely changes the nature of the breach.

Theme 85 turned the case into a rule for all Labor Justice

The minister highlighted that the Full Court of the Superior Labor Court established a binding thesis on this matter, cataloged as Theme 85, precisely because petitions like this frequently arise.

The thesis states that persistent contractual breaches regarding unpaid overtime and the failure to grant uninterrupted breaks authorize the indirect termination of the contract, in accordance with Article 483, Item “d” of the CLT.

Binding means that lower courts must comply. It is not a recommendation; it is an obligation.

Thus, the reporting judge understood that the regional decision contradicted the thesis and violated Article 483 of the CLT, and the Fifth Panel unanimously agreed.

What Article 483 guarantees in practice

Item “d” allows the employee to consider the contract terminated and request the appropriate compensation when the employer fails to meet its legal obligations.

In practice, this is like a reverse dismissal. The worker leaves, but the employer pays the costs as if they had been dismissed without just cause.

This affects severance notice, fines from the Guarantee Fund, withdrawals, and unemployment insurance, altering the entire package that separates those who resign from those who are terminated.

The key term is persistent

It is important to pay attention to this term as it serves as a filter. The thesis does not refer to isolated delays or a single month of payroll errors.

It refers to persistent breaches, meaning repeated and habitual ones, of the kind that the worker can demonstrate throughout the entire contract with time records and work orders.

That was the case here: years of extended hours with a bank of hours that never had the necessary signature to be valid.

The case and where to read the full report

The case was processed as RR 0012210-80.2020.5.15.0021, and the full note is published on the Superior Labor Court’s portal.

Given this context, what stands out is not the amount in dispute, but the time taken. The contract began in 2019, and the final response has only come now, nearly seven years later, regarding hours that had already been worked.

Would you leave your job by requesting an indirect termination, or would you hold on until the company decided to let you go?