A withdrawing partner in a company is not liable for labor claims if they were no longer part of the company’s ownership structure during the period of service that led to the debt being incurred.

Credits: Conjur

Based on this understanding, the 4th Panel of the Regional Labor Court of the 1st Region granted the Appeal filed by a former partner to exclude him from the passive pole of a labor execution.

The controversy originated in a labor lawsuit in which a former employee was collecting debts from a financial services company. Given the lack of assets belonging to the main debtor and its current partners, the plaintiff initiated a Disregard of Legal Personality procedure to redirect the execution to a former partner who had left the company in February 2020. The employee provided services between September and December 2020, and the labor lawsuit was filed in December of the same year.

Upon examining the claim, the 67th Labor Court of Rio de Janeiro accepted the incident and recognized the former partner’s liability. The first-instance judge understood that, since the contractual amendment was registered with the commercial registry in February 2020 and the lawsuit was filed in December of the same year, the collection observed the two-year limit stipulated in article 1,003, sole paragraph, of the Civil Code and in article 10-A of the Consolidation of Labor Laws.

Dissatisfied, the former partner appealed to the TRT-1 (Regional Labor Court of the 1st Region). He argued that there was no patrimonial liability on the grounds that the plaintiff’s work occurred entirely after her formal departure from the company. The appellant alleged that Article 10-A of the CLT (Consolidation of Labor Laws) requires both contemporaneity between participation in the company and the employment contract, and that filing the lawsuit within the subsequent two-year period is not sufficient.

The partner did not benefit.

When evaluating the case, the reporting judge, Álvaro Antônio Borges Faria, highlighted, a priori, that labor credits are of an alimentary nature, which precludes a rigid interpretation of the two-year period between a partner’s departure and the filing of a labor lawsuit to hold the departing partner liable. According to the judge, the main point is to determine whether the former partner benefited from the service provided.

However, this was not the case in the lawsuit. The rapporteur stated that the factor that defines whether or not the withdrawing partner is liable for the labor debt is linked to the period in which these credits originated, that is, during the period of actual service provision.

“In the present case, although the action was filed within the two-year period following the partner’s departure, the defendant’s labor obligations relate to a period subsequent to the partner’s withdrawal; therefore, there is no basis to consider its liability for the plaintiff’s labor claims,” ​​the judge concluded.

Thus, the TRT-1 (Regional Labor Court of the 1st Region) unanimously decided to exclude the withdrawing partner from the passive side of the execution proceedings.

Attorney Paulo Fernando de Souza Brito acted on behalf of the former partner.

Click here to read the judgment
in case number 0101017-25.2020.5.01.0067