Zanin overturns TST decision and denies employment relationship to Rappi delivery driver

Minister Cristiano Zanin, of the STF (Supreme Federal Court), overturned a decision by the TST (Superior Labor Court) and denied the employment relationship to a Rappi app driver.

This is Zanin's first ruling on app-based workers and the first by the Supreme Court to overturn a Superior Labor Court (TST) ruling. Until then, the court had been denying the right to contract under the CLT (Consolidation of Labor Laws) in cases decided by regional labor courts.

The minister accepted Rappi's arguments that the fact that it acts as an intermediary in the delivery service between the worker and the consumer does not guarantee the existence of a bond between the parties.

In his report, Zanin says that the company's complaint is "well-founded" because what was defined by the Labor Court "contravened binding decisions of the Supreme Federal Court."

The STF's position on app drivers has been based on the court's own definitions allowing outsourcing and other types of professional hiring, such as the PJ (Legal Entity) contract.

The tug-of-war between the Labor Court and the Supreme Court intensified this year, with decisions by Justices Gilmar Mendes and Alexandre de Moraes in favor of apps and against the employment relationship highlighted by Labor Courts in cases involving drivers who transport passengers or deliver food.

Daniel Domingues Chiode, a partner at the firm Chiode Minicucci | Littler, who represented Rappi in the lawsuit, says that the Consolidation of Labor Laws (CLT) is neither suitable nor up-to-date to govern this type of professional activity, and therefore, the self-employment contract is the closest approximation to these new forms of professional activity.

For him, the only way forward would be to overturn the decision. "This isn't about violating the jurisdiction of the Labor Court, but about preserving the Supreme Court's authority when a Labor Court decision violates the Constitution," he states.

This argument is contested by labor lawyers, labor judges, and the Brazilian Bar Association (OAB) itself. They argue that the Superior Labor Court (TST) is the highest court for adjudicating labor cases, and its decisions should not be overturned by the Supreme Federal Court (STF), as the jurisdictions of the courts differ.

In “Letter in Defense of the Constitutional Jurisdiction of the Labor Court,” a group of more than 60 labor court advocates ask the Supreme Court to respect Article 114 of the Federal Constitution, guaranteeing the court's jurisdiction in its actions and decision-making regarding relationships between employers and companies.

"Labor courts and their judges deserve prestige and respect as constitutional bodies responsible for exercising specialized jurisdiction, focused on the application of the law, legal certainty, and social pacification," the excerpt reads.

In a note signed by Michele Volpe, director of Rappi's legal department, the app states that the decision taken by Cristiano Zanin enshrines "economic freedom and the organization of productive activities."

“Rappi works with a service provision model, where delivery drivers are independent professionals, constituting a new type of work,” the note says.

"We came to Brazil to stay, and to do so, we need the legal security of Rappi's business model and other platforms in Brazil to be guaranteed," the company further states.

Article originally published on November 22, 2023 on the Folha de S. Paulo website.