TST denies link between bookmaker in Pernambuco and illegal gambling.
A work contract entered into for the performance of activities inherent to illegal practices is considered null and void. This was the understanding of the Superior Labor Court when it revoked a decision of the Regional Labor Court of Pernambuco and exempted a bookmaker from paying vacation pay, 13th-month salary, unemployment insurance, FGTS (Brazilian severance fund), and notice pay to a bookmaker.
The decision was based on the court's jurisprudence, consolidated in Jurisprudential Guidance number 199 of the SDI-1 (the employment contract entered into for the performance of an activity inherent to the practice of the illegal lottery game "jogo do bicho" is null and void, given the illegality of its object, which removes the requirement for the validity of the legal act).
The bookmaker went to court in Pernambuco to obtain recognition of an employment relationship with the gambling company Mirim da Sorte. He claimed that he was hired as a bookmaker at Eraldo's gambling establishment, who in turn rented the space from a third party. He said he was fired due to a mistake in the payment of a prize. He filed a labor lawsuit against the owner of the gambling establishment, requesting recognition of an employment relationship and payment of severance pay, as well as overtime.
The 11th Labor Court of Recife upheld the request for recognition of an employment relationship but denied overtime pay because it was not proven. According to the judge, despite recognizing the practice of illegal gambling as a criminal offense, the employment relationships existing within this activity cannot be considered null and void "in deference to the principles of the primacy of reality, the dignity of the human person, and the prohibition of unjust enrichment." Eraldo's gambling establishment was ordered to pay vacation pay, 13th-month salary, unemployment insurance, FGTS (Brazilian severance fund), and notice pay, in addition to having to make the necessary entries in the employee's work card.
The owner of the illegal gambling operation appealed to the Regional Labor Court of Pernambuco (TRT-PE), but was unsuccessful. According to the regional court, denying the employment relationship due to the illegality of the work arrangement would be "too easy a solution and completely incapable of addressing the problems of social reality." The TRT's ruling, in upholding the decision that recognized the employment relationship, highlighted the impunity surrounding those who run illegal gambling operations: "The essential organs for the administration of Justice, in their respective spheres, take no action against the overt practice of illegal gambling. Here, in the Labor Courts, however, where it should also be the case for the sake of consistency, the most common outcome has been one of the most unjust: according to countless decisions, the worker would be entitled to nothing for the services rendered to the gambling operator. It is as if, unable to punish the player and the operator – the only offenders in the eyes of the law – the judge decided to penalize, because they are the weaker party, the employees of the gambling operator."
The matter reached the TST (Superior Labor Court) through an appeal filed by the banker. Following the established jurisprudence of the TST, the rapporteur of the appeal, Minister Fernando Eizo Ono, granted the appeal to declare the employment contract null and void and, consequently, dismiss the claims made by the money changer. The minister also ordered that the Public Prosecutor's Office of the State of Pernambuco be notified of the labor claim. RR-6200-85.2009.5.06.0011 (Revista Consultor Jurídico – With information from the Press Office of the Superior Labor Court)
