Businessman has pension pledged to pay labor debt

The TST (Superior Labor Court) determined that the retirement of a businessman has a monthly discount of 30% to pay a labor debt of a receptionist. The total amount owed to the former employee is around R$60,000.

As current legislation does not authorize debt imprisonment, except in the case of alimony, the garnishment of wages and pensions may be a way out, according to Washington Barbosa, professor of labor law at Meu Curso Educacional.

Rafael Lara, PhD in labor law and partner at Lara Martins Advogados, says that the TST decision reinforces what the law allows.

A lawsuit judged by the TST was filed in 2017 by the receptionist against the company in which the retiree is a partner.

In the first instance, the 64th Labor Court of São Paulo determined the monthly attachment of 30% of the pension until the debt is settled. The businessman filed a writ of mandamus at the Regional Labor Court of the 2nd Region, on the grounds that the abatement jeopardized his livelihood and had no legal support.

After an appeal by the receptionist, the TST unanimously decided to reinstate the attachment.

According to the rapporteur, Minister Douglas Alencar, as retirement is also a food fund, the attachment must be limited to 50% of the gains, to guarantee and protect the rights of creditor and debtor.

The magistrate recalled that the legislation in force authorizes the attachment of retirement, as salary credits also have a food nature.

How to sue your former employer

out-of-court settlement

• The worker can choose to be represented by the union lawyer of the professional category or to hire a private
• A joint petition is made by the employee and the employer, both represented by lawyers. It is forbidden to be the same lawyer for both parties
• The Court has 15 days (in which time it can designate a hearing) to review the petition and issue a ruling.

contentious jurisdiction

• The initial petition must be filed in the 1st degree of the Labor Court by a lawyer
• To make a verbal complaint, the worker must go to the judicial unit: labor court, labor court or outpost
• If the initial petition meets the legal requirements, the judge will designate a hearing, which will only take place if both parties are present.

Causes above 40 minimum wages (R$ 48,480) and public administration

• First, there is an attempt at conciliation, the presentation of the defense and documents, the designation of expertise and the issuance of letters precatory.
• At the second hearing, the conciliatory attempt is renewed and the testimonies of the parties and witnesses are collected. The instruction phase is ended, with the availability of the process for the elaboration of the sentence

Up to 40 minimum wages

• There is a single hearing (conciliatory attempt, presentation of the defense and documents, manifestation of the opposing party on the documents and depositions of the parties and witnesses). After that, the process moves on to the sentence elaboration stage.