Among other qualities, the legal community is very skilled at creating memes on social media. And there's no time of year better suited to generating memes than the so-called judicial recess. "It's already judicial recess in Australia," says a meme that has now become a tradition.

This article aims to clear up some myths related to the judicial recess and vacations, as well as revealing two or three well-kept secrets about labor law practice in the higher courts.

  • OVERCOMING A MYTH AND REVEALING SOME SECRETS

To begin with, the most important thing: the myth that all deadlines are suspended during the judicial recess and vacations is false.

We are not referring to statutory limitations or lapse periods, nor to the exception made by article 215 of the Code of Civil Procedure (CPC) on the time limits that apply during judicial vacations. Nor is it the case of the rule in article 129, II, of Law 8,213/91, which provides for the processing of disputes and injunctive measures relating to accidents at work, including during judicial vacations. Or, again, the time limit for an action for vacatur - which, as is well known, is extended to the first subsequent business day "when it expires during judicial vacations, recesses (...)" (article 975, paragraph 1, CPC).

We are dealing here with labor procedural deadlines that are not suspended during judicial recess and vacations. These deadlines exist and overcome the myth that all labor procedural deadlines are suspended during judicial recesses and vacations. The fall of this myth is also the revelation of a first secret: the existence of a universe that does not stop working during judicial recesses and vacations, the Disciplinary Board of the Labor Judiciary (CGJT).[1]

A subject little studied by the legal profession and to a certain extent unknown even to lawyers, the jurisdiction and duties of the Disciplinary Board of the Labor Judiciary form a magnificent universe that is fully expanding even during the judicial recess and vacations.[2] The CGJT's own case law establishes that its activities are uninterrupted:

  • “APPEAL PURSUANT TO INTERNAL RULES OF COURT. PARTIAL CORRECTION. UNTIMELINESS. COURT RECESS. UNINTERRUPTED ACTIVITY OF THE DISCIPLINARY BOARD. 1. An interlocutory appeal does not merit relief when the reasons given fail to undermine the grounds set out in the decision rejecting the complaint. 2. The activities of the Disciplinary Board of the Labor Judiciary are uninterrupted, and the judicial recess does not constitute a cause for suspension of the time limit in the rules referred to in article 17 of the RICGJT. Precedents. 3. Interlocutory appeal denied relief." (TST, Special Body, CorPar - 1000013-93.2019.5.00.0000, opinion drafted by Justice Lelio Bentes Correa, DJ, October 15, 2019, emphasis added)

The precedent shows that the deadline laid down in article 17 of the Internal Rules of the Disciplinary Board of the Labor Judiciary (RICGJT) is not influenced by the judicial recess.[3] This reveals a second secret - perhaps the most important one: the five-day deadline for filing for a partial correction influences the deadline for filing an appeal in the main action.

The subject is broad and beyond the limits of this short article. The idea, however, is simple: if the party wants to preserve the useful outcome of the main proceedings, it should bring forward the filing of the appeal in the main action and make it coincide with the deadline for filing the partial correction. It's something that even relates to article 218, paragraph 4, of the CPC and with the rule that says that an appeal filed before the start of the deadline is timely.[4]

An important precaution can be added to equalize the judicial recess and group judicial vacations.

For labor lawyers who do not practice before the Superior Labor Court, the judicial recess is established by article 775-A of the CLT: the procedural deadlines are suspended between December 20th and January 20th, inclusive.[5]

But Brazilian cassazionisti or barristers practicing before the Superior Labor Court need to consider in their strategies the canonical judicial recess, so to speak, and the group judicial vacations, "in the periods from January 2 to 31 and from July 2 to 31" (article 66, paragraph 1, of Complementary Law 35/79).

Another trap is hidden here and a third secret for lawyers is revealed: even during the group vacation period , the work of the Disciplinary Board of the Labor Judiciary is uninterrupted. CGJT case law states as follows:

  • “APPEAL PURSUANT TO INTERNAL RULES OF COURT IN A PARTIAL CORRECTION. UNTIMELINESS OF THE CORRECTION MEASURE. JUDICIAL RECESS AND GROUP VACATIONS. UNINTERRUPTED ACTIVITY OF THE DISCIPLINARY BOARD.  1. The activity of the Disciplinary Board of the Labor Judiciary is uninterrupted. In the event of any absences or temporary impediments, the Disciplinary Board of the Labor Judiciary will be replaced by the Deputy Chief Judge, or, in the absence of the Deputy Chief Judge, by the Chief Judge, and then by the Justices, in descending order of seniority, in accordance with articles 15, subsection III, of the Internal Rules of the Superior Labor Court and 2, paragraph 2, of the Internal Rules of the Disciplinary Board of the Labor Judiciary. For this reason, neither the judicial recess nor the group vacations of the Justices of the TST constitute a cause for suspending the five-day deadline for the interested party to request partial correction from the Disciplinary Board of the Labor Judiciary. Particularly in this case, where the party invokes a suspension of deadlines within the jurisdiction of the Regional Court. 2. The Appellant did not put forward any argument that would undermine the grounds of the order under appeal, which is why the request for modification of the decision does not prosper. (TST, AgR-CorPar 1002-24.2016.5.00.0000, reporting judge Justice João Batista Brito Pereira, Special Body, DEJT, June 14, 2016, emphasis added)
  • DISTINCTION BETWEEN THE DEADLINES FOR FILING FOR PARTIAL CORRECTION AND FOR FILING AN INTERLOCUTORY APPEAL PER INTERNAL RULES OF COURT

The difference is fundamental between the deadline for submitting the partial correction and the deadline for filing an interlocutory appeal with the Special Body of the Superior Labor Court - an appeal that may be lodged, depending on the alternative chosen by the Justice member of the Disciplinary Board of the Labor Judiciary (a position currently held by Justice Dora Maria da Costa) when submitting the application for partial correction.

One of the alternatives involves immediate rejection of the partial correction, "if it is inadmissible, inept, untimely, or unaccompanied by an essential document" - which reinforces the need to pay attention to timeliness, even during judicial recesses and vacations.[6]

A question little debated in labor law scholarship: if the request for correction is rejected or granted during the recess and vacation periods, is the deadline for filing the interlocutory appeal, provided for in article 35 of the RICGJT,[7] influenced by the suspension of deadlines or is it not suspended?

It seems like a simple question, but it led to a tie,[8] a request for review, twists and turns,[9] and a great deal of reflection in the paradigmatic precedent RC 1552056-38.2005.5.00.0000, in which the theory was established that the time limit for the interlocutory appeal is suspended during judicial recesses and vacations. Since then, this understanding has been reiterated, maintaining the distinction between the deadlines for filing for a partial correction and for filing an interlocutory appeal:

  • “(...) V - Here it is worth noting the impertinence of the appellate decision in AG-RC-1552056-38.2005.5.00.0000 (DJ of September 1, 2006), invoked by the appellant to support its version that the case law that does not suspend deadlines in this Disciplinary Board during the judicial recess is not settled. VI - It was argued there that the urgency capable of justifying absence of suspension of the deadline during the judicial recess was indiscernible in the case of an interlocutory appeal, that is, an "appeal filed against a decision of the Disciplinary Board," a situation different from that outlined in the decision under appeal, in which the untimeliness of the partial correction was recorded. VII - The subject-matter inadequacy of the provisions of articles 173, head paragraph, 179 of the CPC and 183 of the RITST should also be emphasized, since the rules of the CPC and the Internal Rules of this Court refer to procedural deadlines, that is, deadlines that must be observed in the triangular procedural relationship in which its protagonists are involved, among which the deadlines referring to the judge stand out, with everything indicating that they refer substantially to the exercise of judicial activity, unrelated to the duty of the Disciplinary Board, known to be of an administrative nature, according to article 709 of the CLT and article 6, subsection II, of the RICGJT/2011. VIII - Hence no violation of subsections XXXV, LIV, and LV of article 5 of the Constitution can be seen, either because the decision under appeal refers to the repeated actions of the Disciplinary Board, or because the untimeliness of the partial correction does not reach a constitutional level. IX - Interlocutory appeal denied relief." (TST-AG-CorPar-301-68.2013.5.00.0000, Special Body, reporting Justice Barros Levenhagen, DEJT, April 5, 2013, emphasis added)
  • CONCLUSION

There are many lessons in the case law of the Disciplinary Board of the Labor Judiciary that, if looked at carefully, become secrets revealed to the lawyer obliged to act during judicial recesses and vacations.

Only those who have had to draft and file a partial correction on Christmas Eve know that obtaining a favorable decision from the Disciplinary Board of the Labor Judiciary on Christmas Day gives new meaning to hope in justice and makes concrete the theoretical idea that to win without challenges is to triumph without glory.[10] For the lawyer who prefers to wait until the end of the judicial recess and vacation to file a partial correction, there will always be the story already told by the precedent TST-AG-CorPar-301-68.2013.5.00.0000:

  • "INTERLOCUTORY APPEAL IN PARTIAL CORRECTION - IN LIMINE DISMISSAL OF THE COMPLAINT AS UNTIMELY - NON-SUSPENSION OF THE DEADLINE FOR FILING THE CORRECTIVE MEASURE DURING THE JUDICIAL RECESS - READING OF ARTICLES 15, SUBSECTION III, OF THE RITST AND 2, PARAGRAPH 2, OF THE RICGJT/2011 - INSUBSISTENCE OF THE ARGUMENTS ON APPEAL. I - It should be noted, as it was in the decision under appeal, that article 15, subsection III, of the RITST provides that, in the event of absences or temporary impediments, the Disciplinary Board of the Labor Judiciary will be replaced by the Deputy Chief Judge, or, in the absence of the Deputy Chief Judge, by the Chief Judge, and then by the Justices, in descending order of seniority". II - Article 2, paragraph 2, of the RICGJT/2011, in turn, states that "in the event of absences, impediments, and vacations, the Justice serving as Disciplinary Reviewer will be replaced, in the exercise of his functions, by the Deputy Chief Justice or, in his absence, by the Chief Justice of the Court and, if this is not possible, by the Justices in descending order of seniority". III - It is clear from the aforementioned rules of procedure that the exercise of the duties conferred on the Disciplinary Board of the Labor Judiciary does not suffer from dissolution of continuity, such that the judicial recess and collective vacations cannot be characterized as causes that suspend expiration of the period for the interested party to file for partial correction (precedents of the Disciplinary Board of the Labor Judiciary). IV - Based on these considerations and taking into account the rule of article 17, head paragraph, of the RICGJT/2011, which sets the deadline for filing for partial correction at five days, the measure sought is untimely, since the applicant was unequivocally aware of the decision to be corrected on December 19, 2012, and did not realize that the deadline had fallen on December 24, 2012, and only filed the complaint on January 11, 2013. (...)." (TST-AG-CorPar-301-68.2013.5.00.0000, Special Body, reporting judge Justice Barros Levenhagen, DEJT, April 5, 2013, emphasis added)

Of course, for many lawyers, all the "secrets" revealed by this article are nothing more than Pulcinella's secret.[11] Anyone who is familiar with the case law of the Superior Labor Court knows that, "according to long-standing and settled case law, the recess does not constitute a cause for suspending the flow of time limits for the applications for correction." This case law was already well-established in 2009, when the following judgment was published:

  • "On the other hand, the Application for Correction is manifestly untimely. Under the terms of article 15 of the Internal Rules of the Disciplinary Board of the Labor Judiciary, the deadline for filing an application for correction is five days, counting from publication of the act or order in the official gazette, or from the party's unequivocal knowledge of the facts relating to the objection. In this case, the act now contested was published in the Electronic Journal of the Labor Courts on Thursday, December 18, 2008 (page 481). Thus, the legal five-year period for filing an application for correction began on Friday, December 19, 2008, and ended on Tuesday, December 23, 2008. The Application for Correction under examination, however, was only filed on Thursday, February 5, 2009 (page 2). Untimely, therefore. It is important to emphasize that, according to long-standing and settled case law, the recess does not constitute a cause of suspension of the flow of the deadline for applications for correction, either because there is no legal permission, or because the Disciplinary Board of the Labor Judiciary runs uninterruptedly. (...)." (TST, RC-2044806-52-2009.5.00.0000, Disciplinary Board of the Labor Judiciary, Justice João Oreste Dalazen, decided on February 12, 2009, emphasis added)

But the competence and duties of the Disciplinary Board of the Labor Judiciary involve highly complex and challenging issues. Just think, for example, of the impact and potential that article 22 of the RICGJT can acquire in a system of mandatory and qualified precedents.[12] Not to mention the gigantic scenario that emerges from reading the sole paragraph of article 13 of the RICGJT.[13] To return to the memes: those in the know will know.[14]

Finally, when you see a legal meme about the judicial recess and vacations, remember that neither St. Ivo nor St. Claus will be able to help if your lawyer forgets that the activities of the Disciplinary Board of the Labor Judiciary are uninterrupted.

 

[1]The purpose of this article is to deal with the dynamics of the Disciplinary Board of the Labor Judiciary during judicial recesses and vacations. At some point in the future, another article will have to be written to deal with the equally relevant and admirable performance of the chief judge’s chambers of the Superior Labor Court during judicial recesses and vacations. As the TST operates on call during this period and there is no service in the offices and chambers of the Justices, it is incumbent on the Chief Judge, independently of the reporting judge, to "decide, during the judicial recess, collective vacations, and holidays, on petitions for injunctions in applications for mandamus, provisional injunctions of an urgent nature, and other measures claiming urgency" (article 41 of the Internal Rules of the TST).

[2] In general, when thinking about the jurisdiction and duties of the CGJT, it is not usually considered beyond the head paragraph of article 13 of the RICGJT, according to which "Partial Correction is appropriate to correct errors, abuses, and acts contrary to good procedural order and which imply an infringement of legal procedural formulas, when there is no appeal or other specific procedural means for the case."

[3] RICGJT, article 17: The deadline for filing a Partial Correction is five (5) days, counting from the publication of the act or order in the official gazette, or from the party's unequivocal knowledge of the facts relating to the objection.

[4]CPC, article 218, paragraph 4: Any act carried out before the initial deadline will be considered timely.

[5] However, there is already a case of this rule being relaxed: lawyers who work at the Campinas Labor Court in São Paulo, for example, managed to sensitize the administration of the Court of the 15th Region and won a few more days of judicial recess. As a result, procedural deadlines in that court will also be suspended from January 21 to 29, 2024, with deadlines resuming on January 30, inclusive (GP-CR Ordinance 15/23).

[6]The alternative of an immediate dismissal of partial correction is indicated in article 20, I, of the RICGJT. The second alternative is provided for in article 20, II, of the RICGJT: preliminary granting of suspension of the act objected to by the application for partial correction. The third alternative is provided for in article 20, III, of the RICGJT: to dismiss the partial correction outright, provided that the request is manifestly unfounded. And a fourth alternative has been noted in practice: the scheduling of a conciliation hearing.

[7]RICGJT, article 35: Decisions handed down by the Disciplinary Board may be appealed to the Special Body of the Superior Labor Court, in accordance with article 69, item I, letter "g", of the RITST.

[8] In the judgment session of November 10, 2005, two justices voted that the time limit for an interlocutory appeal was uninterrupted and two justices considered that the time limit for an interlocutory appeal was suspended during the judicial recess. A request for review of the record suspended the judgment, with the following scenario being recorded: "Decision: unanimously to adjourn the judgment of the case due to the request for review of the record granted to Justice João Oreste Dalazen, after the votes of the Hon. Justices Rider Nogueira de Brito and Ronaldo Lopes Leal to dismiss the appeal as untimely. The Hon. Justices Vantuil Abdala and José Luciano de Castilho Pereira voted to hear the appeal, dismissing it as untimely."

[9] It took a few months for the winning theory to be set, which established that the time limit for the interlocutory appeal is suspended during judicial recesses and vacations. The threshold issue of in limine rejection of the interlocutory appeal was rightly noted: "Decision: I - by a majority, to reject the threshold issue of non-admission of the interlocutory appeal, over the dissent of the Hon. Justices Ronaldo Lopes Leal, Antônio Barros Levenhagen, José Simpliciano Fernandes, and Emmanoel Pereira; II - unanimously, to dismiss the interlocutory appeal. Note: I - Justice Rider Nogueira de Brito, reporting judge, changed his vote in the session of November 10, 2005" (TST, en banc, published in the Gazette of the Judiciary on September 1, 2006).

[10] Among many precedents, see the emblematic decision handed down by Justice Dora Maria da Costa in CorPar 1001189-68.2023.5.00.0000, decided on December 22, 2023.

[11] Segreto di Pulcinella is an Italian idiomatic expression used to indicate a secret that is not actually secret because it has become public, despite the attempts to keep it secret by those who think they are the only people to know the "secret". In short, Pulcinella's secret is an obvious one known to all.

[12]RICGJT, article 22: The Disciplinary Board, if it deems it necessary, may order a copy of the final decision to be sent to other Judges and Courts for uniform observance.

[13]RICGJT, article 13, sole paragraph: In an extreme or exceptional situation, the Disciplinary Board may adopt the necessary measures to prevent damage that would be difficult to repair, thus ensuring a useful outcome to the proceeding, until the matter is examined by the competent judicial body.

[14]To go beyond the meme, we recommend reading the application of ADI 4.168 (reporting judge Justice Nunes Marques), filed by Anamatra to protect the freedom of labor judges against the actions of the Disciplinary Board of the Labor Judiciary.