Since Embraer's well-known mass lay-off case (Case No. 309-2009-000-15-00-4), collective disputes have been used by unions as a judicial measure to challenge the legality of terminations that, allegedly conducted en masse, affect a significant group of workers linked to an establishment or company.
In short, proponents of the appropriateness of the measure affirm that the rights under discussion involve a particular category, which, coupled with the collective repercussion and the peculiarity of the matter, supposedly justify the use of a collective dispute to challenge the collective dismissals.
The "creation" of this alternative route has always been the subject of controversy, since collective disputes of a judicial nature have as their purpose the search for the meaning and scope of a certain legal or collective bargaining rule or a normative judgment, that is to say, relief of a declaratory nature to clarify with exactness the interpretation of pre-existing rule, thereby mitigating any obscurity or doubts about it.
In cases of dismissals en masse, what is being sought is the annulment of dismissals, the rehiring of the dismissed workers, and, consequently, the payment of resulting amounts (salaries, benefits, health plans, etc.). Such prayers for relief are not only individualized (group of workers), therefore, not affecting the entire category, but they also clearly exhibit features of coercive relief.
In view of the controversy and the relevance of the subject, in reviewing a case involving dismissal en masse (Case No. 10782-38.2015.5.03.0000), the TST’s Collective Disputes Section decided to refer the matter for an en banc decision by the Court in order to obtain opinions from all the Justices on the Court.
Having submitted the question to an en banc vote, most of the Justices of the TST decided that collective dispute of a legal nature is an inappropriate measure to deal with dismissal en masse.
The winning vote held that the collective repercussion of the matter does not have the capacity to extend the jurisdiction of the TST and/or the purpose of collective disputes of a legal nature. The appropriateness of suit to the matter is not a question of mere formalism, but rather is a determining factor in absolute jurisdiction, which stems from law.
The en banc decision issued by the TST is not binding but serves as an important precedent to guide parties and inform future decisions on cases involving en masse lay-offs.