Uber will have to compensate family of driver murdered on the street

Uber will have to compensate the family of a driver murdered while working through the app in Fortaleza (CE), decided the 3rd Class of the TST (Superior Labor Court).

The amount of compensation will still be calculated at the TRT-7 (Regional Labor Court of the 7th Region), in Ceará, where the action was initiated.

The driver was shot to death in September 2018 after an argument with a biker. According to the worker’s wife and son, authors of the action, he worked exclusively through the application.

In a statement, Uber says it regrets the episodes of urban violence. “Unfortunately, traffic incidents are still common in Brazilian cities. We hope that the authorities advance in the investigations to find those responsible and bring them to justice as quickly as possible”, he says.

For Minister Alexandre Agra Belmonte, rapporteur of the case at TST, Uber should be characterized as a carrier, which does not have a fleet, but explores the activity of transporting people through the application.

The Civil Code, according to Belmonte, provides for strict liability of the company, in which the carrier is not at fault for the damage, but there is an obligation to repair.

In the minister’s understanding, the traffic dispute that resulted in the driver’s death “is directly related to the dangerous and stressful activity of transport in large cities characterized by violence.” Strict liability would only be waived in the event of extraordinary events such as floods, stray bullets or lightning.

In TRT-7, where the company’s liability, as well as the conviction for moral and material damages, were denied, there was recognition that the driver and Uber had a working relationship.

The company contested the framework and argued that the discussion of compensation to the driver’s family should not take place in the Labor Court.

Uber presented a similar argument to the one its lawyers use in lawsuits that discuss employment relationship, that it is not a transportation company. The application says that “the work took place via the platform, and not for the platform and that, for this reason, the Labor Court would not be competent.”

For Belmonte, the existence of an employment relationship is one of the presuppositions for the process to be analyzed within the scope of the Labor Court. The compensation, he wrote, “is based on the employment relationship established with the company Uber, in the condition of self-employment, in the execution of a service provided in person.”

The examination of the company’s responsibility in the death of the driver, according to the minister of the TST, must occur “regardless of the question of whether it is an employment relationship or simply work.”

The decision of the 3rd Panel is December 7th. On February 5, Uber filed an appeal, which has yet to be reviewed. The company states, in a statement, that the decision of the TST group is an isolated understanding and argues that the situation is not related to the use of the application, as it is a crime committed on public roads.

It also says that “there is solid jurisprudence in the Judiciary determining that the Labor Court is not competent to judge claims for compensation against Uber in which there is no request for a labor relationship. The most recent decision in this regard was handed down in September by the STJ (Superior Court of justice).”

Agra Belmonte, in the decision in which he determined the payment of compensation, said he disagreed with the STJ’s understanding.

Cases that discuss the existence or not of an employment relationship between Uber and the drivers began to be judged in TST classes in 2020. In December last year, the 3rd Class formed a majority on the understanding that there is an employment relationship.

The trial was not concluded because minister Agra Belmonte asked for more time to vote, but the result will be maintained in favor of recognition of the bond.

This was the first decision of a TST class in favor of the recognition of employment relationship. The courthouse has eight classes in all. In the 4th and 5th classes of the Superior Labor Court, the requests of drivers had been denied.

In the civil sphere, the 15th Chamber of Private Law of the TJ-SP (São Paulo Court of Justice) denied, on January 19, an appeal through which Uber was trying to reverse the conviction to compensate the brothers of a passenger who died later. that the car in which it was being transported was involved in an accident.

The company was ordered to pay R$40,000 for each brother of the passenger who died in the accident in April 2016.

For judge Vicentini Barroso, the services provided by Uber are not limited to enabling contact between partner drivers and people interested in the service, as “it is paid only if the transport takes place” and, therefore, there is liability for damages.

“The defendant has undeniable mastery of the business activity that it explores, indicating the driver closest to the passenger, setting the value of the ride, determining a rule of conduct for drivers, requiring evaluation of the services by users, that is, it undeniably provides transport services of passengers through the drivers that it registers on its platform”, wrote the judge.

Uber says it maintains personal accident insurance, offered to drivers and users, and which covers all trips or deliveries brokered through the platform. “The policy also indemnifies regardless of the determination of guilt or liability for the personal accident with a partner or user of the platform.”