Blog

The departure of a family group partner often consolidates tensions that have built up over the course of the partnership.

The disagreement is no longer restricted to financial matters and can extend to other areas, including labor courts.

This is what happened in a case recently judged by the Second Panel of the Superior Labor Court (TST), in which the departure of a partner from a family economic group resulted in a request for recognition of an employment relationship with the company in which she participated.

In such contexts, it is common for the discussion to be transferred to the formal level, as if the existence of certain records were sufficient to redefine the nature of the relationship. The presentation of registration forms, vacation receipts, or proof of FGTS payments is usually treated as sufficient evidence of the existence of an employment relationship.

The premise, however, is not legally sustainable. Documents do not have autonomous constitutive force. They confirm a reality when the structural elements of the employment relationship are present. They do not create it.

Legal qualification remains linked to the requirements of Article 3 of the CLT, especially legal subordination. It is at this point that corporate conflicts begin to be misinterpreted.

The fact that a partner submits certain matters to the managing partner or other partners, or acts within previously defined limits, does not authorize the conclusion that the relationship was subject to the subordination typical of an employment contract.

Every company establishes governance rules, defines responsibilities, sets performance parameters, and institutes internal control mechanisms. These instruments structure management and organize decision-making.

The need to observe collegiate deliberations or to submit relevant acts to the approval of other partners is part of the functioning of the company. This is not, in itself, a manifestation of managerial power in the labor sense.

It is worth reflecting on a misconception that often arises in this type of dispute. The principle of the primacy of reality does not operate only in favor of those who seek recognition of the relationship. It is a qualifying criterion that applies to all parties. Reality prevails both to dismiss and to recognize the employment relationship.

If the dynamics reveal involvement in management, participation in decisions, and the exercise of duties inherent to the status of partner, labor records do not alter this nature.

In disputes arising from family tensions, the reclassification of the relationship as an employment relationship may arise as an extension of the corporate controversy.

Even so, the legal definition does not stem from differences or the existence of formal documents, but rather from the position occupied in the corporate structure and the way in which power and responsibilities are distributed within the organization.

Read More.

By Daniel Dias