With the Labor Reform, we had the insertion of art. 10-A of the CLT, which establishes that the retiring member responds subsidiarily by labor obligations of the company relating to the period in which he was a partner, only in lawsuits filed up to two years after the modification of the contract has been registered.
Subsidiary liability means that the former partner will only be held liable after the current partners have failed to fulfill the company's obligations. The order of liability will be as follows: first the debtor company, then the current partners, and then the retiring partners. This liability of the retiring partner can only occur for the period in which he benefited from the worker's labor force.
The retiring partner will be jointly liable with the others. when fraud is proven in the corporate change resulting from the modification of the contract. If the case falls under the hypothesis of joint and several liability, partners and former partners may be charged, without any benefit of order.
The Reform resolved a major divergence that existed in doctrine and jurisprudence regarding the possibility of applying Articles 1003, sole paragraph, and 1032 of the Civil Code in Labor Law, which determined joint and several liability of the retiring member up to two years after his withdrawal. (GONÇALVES, 2019).
LIABILITY OF THE PARTNER IN A PUBLIC LIMITED COMPANY.
In the case of a minority withdrawing partner of a publicly held corporation, there is no management power, and it is understood that there should be no liability regarding labor benefits (LEGAL CONSULTANT, 2018).
In a decision by the 2nd Panel of the TRT of the 1st Region, it was argued that applying the theory of disregard of legal personality to hold minority shareholders of publicly held corporations, who are often outside the control of the company, liable would be to subvert the business system, indiscriminately holding shareholders liable for labor debts of corporations (CONSULTOR JURÍDICO, 2018).
This understanding would be reinforced by Law 6,404/76, which determines that only controlling shareholders and administrators can be held liable for damages caused, and even then, only after fraudulent management has been proven (LEGAL CONSULTANT, 2018).
APPEAL OF PETITION. PUBLIC LIMITED COMPANY. MINORITY SHAREHOLDER. THEORY OF DISREGARD FOR LEGAL PERSONALITY. INAPPLICABILITY. The theory of disregard for legal personality does not apply to minority shareholders, without management power, of public limited companies, who are often legally and completely unrelated to the company's corporate control, under penalty of subverting the entire business and financial system of the country, indiscriminately holding shareholders liable for labor debts of public limited companies. (TRT OF THE 1ST REGION, 2ND PANEL, 2017, AP 0010300-06.2015.5.01.0046)
DISREGARD OF LEGAL PERSONALITY – CLOSED PUBLIC LIMITED COMPANY. Labor jurisprudence has long been consolidated regarding the possibility of piercing the legal personality of limited liability companies, including minority shareholders with small equity interests, aiming to prevent fraud and abuse of rights committed through the company. Controversy remains regarding public limited liability companies, whose shareholders are often exempt from any labor liability solely due to the corporate structure chosen, which is unreasonable. It is particularly important to determine whether the company is publicly or privately held, as the 2002 Civil Code closely aligned the operation of limited liability companies with that of privately held corporations, leaving virtually no reason to differentiate between them regarding the liability of partners and shareholders. (Case No. AP-1007-22.2010.5.03.0049 – Case No. AP-1007/2010-049-03-00.9 – 3rd Reg. – Juiz de Fora Appeals Court – Rapporteur Judge Heriberto de Castro – DJ/MG 05.09.2012, page 179)
As regards minority shareholders of Limited Liability Companies, labor jurisprudence has been consolidated in the sense that there is the possibility of disregarding the legal personality, to hold even minority shareholders, with small shareholdings, liable, with the aim of preventing fraud and abuse of rights (OLIVEIRA, 2019).
EXECUTION. LIABILITY OF THE MINORITY SHAREHOLDER. THE LIABILITY OF THE SHAREHOLDER, EVEN IF A MINORITY SHAREHOLDER, SHOULD NOT BE LIMITED TO HIS SHAREHOLDING SHARE IN THE COMPANY WHEN THE INSUFFICIENT ASSETS OF THE COMPANY ARE VERIFIED AND THE THEORY OF DISREGARDING THE LEGAL PERSONALITY OF THE COMPANY BEING EXECUTED IS APPLIED (TRT OF THE 12TH REGION, 2007, P. 1, AP 01929-2005-046-12-00-0).
In this sense, the Civil Code brought the functioning of the Limited Liability Company and the Closed Public Limited Company very close, with no reason to differentiate them regarding the liability of the minority partner (OLIVEIRA, 2019).
REFERENCES
LEGAL CONSULTANT. Piercing the legal personality does not apply to a minority partner of a corporation. Legal Consultant, [sl], March 14, 2018. Available at: https://www.conjur.com.br/2018-mar-14/socio-minoritario-sa-nao-responde-divida-trabalhista. Accessed on: October 29, 2020.
GONÇALVES, Sérgio Peixoto Lourenço. The liability of the retiring partner after the labor reform. Legal Consultant, [sl], April 27, 2019. Available at: https://www.conjur.com.br/2019-abr-27/sergio-goncalves-situacao-socio-retirante-pos-reforma-trabalhista. Accessed on: October 29, 2020.
OLIVEIRA, Daniel Heisler de. Liability of partners in labor execution. Jus Navigandi, [sl], 2019. Available at: https://jus.com.br/artigos/76341/responsabilidade-dos-socios-na-execucao-trabalhista. Accessed on: October 29, 2020.
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