One of the most controversial amendments brought in by Law No. 13,467 (the Labor Reform) is the inclusion of paragraph 3 to article 834 of the Consolidated Labor Laws (CLT), which authorizes the representation of companies in labor hearings by representatives who are not their employees. However, in spite of the express legal provision in this sense, parties in court have come across varying interpretations on the subject.

In a recent decision, the judge of the Labor Court of Assu/RN expressed a strict understanding on the matter and dismissed the participation in a hearing of a representative, a lawyer, hired exclusively to conduct an investigative hearing, thereby applying to the company the penalty of confession.

The magistrate opined that the head paragraph of article 834 of the CLT requires the representative to know the facts and that, therefore, employees of a law firm, or “to exaggerate, any passerby" cannot be allowed to act as representatives.

In the trial decision, she argued that the representative does not have to be an employee, but he must be "substantially qualified in relation to the events that occurred at the company" and cannot be "alien to the business environment", under penalty of "prejudice to the company itself that appears as a defendant."

If the magistrate’s understanding prevails, the range of people qualified to exercise the role of representative will be limited. After all, what people who are not employees would be in the business environment and substantially know the events that occur at the company?

For now, it is an isolated position, and the characteristics considered by the magistrate to be necessary for the aptitude of the representative have not been required of those who do have an employment relationship {who are actual employees}.

In general, it was enough that the person be employed by the company in order for him to be a representative, even if he did not even know the plaintiff in the suit. The penalty of confession would be applied only in relation to the facts of which he was not aware and not to all the allegations made in the case.

However, as opined by the magistrate herself in her decision, representation by a representative alien to the facts litigated in the case prejudices the company itself.

Ignorance of the facts will result in the penalty of confession, but with respect to facts that are unknown, and not a full confession on the grounds that the representative was not a part of the business environment.

In this context, reinforcing that there is still no settled understanding by the Labor Courts on the subject, it is advisable not to hire representatives for relevant cases in which the party's testimony will be essential. The representative should be chosen in a judicious manner in order to avoid deemed admission, either through understandings such as the one defended by the Rio Grande do Norte magistrate, or through the facts of which the representative is unaware.