With the advent of the coronavirus, virtual hearings became a reality at the Labor Court, and such a situation continues today. However, it is important to remember that while the pandemic has accelerated and increased Internet access in the country, some data reveals that connection conditions vary among users.
Indeed, a recent study concluded that, among other disparities in access conditions for those professionals who work from home, issues such as communication instability, internet speed and signal quality can be highlighted. .
Meanwhile, according to the United Nations (UN), even with the technological progress brought about by the pandemic, 37% of the global population still does not have access to the world wide web, which today represents about three billion people. .
Nevertheless, a number of issues arise when discussing remote work, especially in situations where there is a lack of infrastructure for parties and witnesses.
The thing is problematic.
From a normative point of view in Brazil, the Federal Constitution, in its article 5, XXXV establishes that access to justice is a fundamental right and guarantee.
On the other hand, Article 5 of Law no. 11. GCGJT from April 23, 2020, predicts that “Procedural actions that can possibly not be performed electronically or virtually, due to the absolute technical or practical impossibility of being pointed out by any of the participants in the action, properly explained in the file, should be postponed after the reasoned decision of the misdemeanor judge. “.
From an international point of view, Article 8 of the Universal Declaration of Human Rights  stipulates that access to justice is a fundamental human right.
In this sense, the teachings of Professor Élisson Miessa are appropriate :
“It is also necessary that the process automation system respects procedural guarantees, in order to be compatible with access to a fair legal system.
This approach will not only be present by opening the “doors” of the judiciary, but requires that all subjects of the process can have the right to effectively participate in the process, considering the possible technical limitations of telepresence procedural actions, especially the need for material support (computers, mobile phones and stable Internet access ) suitable for the participation of parties and attorneys in the hearing.
(…). Therefore, in the case of technical or practical impossibility of holding the hearing, the applicant’s explanation is required, which the misdemeanor judge will explain in a reasoned decision”.
Recently, the District Labor Court of the 2nd County was faced with a specific case and in the end it stayed with the conviction of the company that was punished by applying the effects of “fictitious recognition”, due to the absence of its agent in the teleface audience .
On the occasion of the instruction of MM. after the hearing, the registry court gave the company a deadline to submit an explanation and proof of technical reasons that would make it impossible for it to appear at the store. However, the company specifically admitted that access was not possible due to the fact that it had copied by mistake connection audience.
In this scenario, the Tribunal concluded that there were no technical difficulties, and therefore the company’s conviction was justified. .
In the same sense, the 2nd panel of the District Labor Court of the 18th district confirmed the first-instance decision, which applied the effects of “fictitious confession” to the worker who did not appear at the referral hearing. As in the TRT-SP 2nd Region case above, the employee here could not prove that there was a technical malfunction that could justify his absence from the hearing.
In her vote, the reporter considered that, despite the party informing her of the existence of a technical fault, it was not clarified what that fault would be. In addition, he noted that the trial court would have waited 20 minutes for the worker to enter the room. .
It should be noted that Resolution no. 354/2020 of the National Council of Justice in Article 2. , makes a distinction between a videoconference, contained in the Civil Procedure Act, which is conducted in a state agency, and a telepresent hearing, which takes place in a different physical environment than judicial units. From this point of view, in case of real technical impossibility and lack of appropriate equipment, the hearing can be held by video conference, i.e. in the environment of the court unit, after the reported justification proved by the party in the case.
On the other hand, the Higher Labor Court was provoked to pass a value judgment on the case, in which the lawyer reported a failure of the Internet connection, which would justify the nullity of the process due to the impossibility of conducting an oral hearing. . For the minister-rapporteur, the confirmation of the judgment does not show any attack by the causid to turn to the secretariat of the competent body to request the withdrawal of the case from the agenda, nor its postponement.
In this regard, the minister considered that the submission of the request for annulment occurred only after the verdict, so that before that there was no attempt to contact in any other way that does not depend on the Internet connection, for example landline phone .
For this reason, it is essential that the parties take all necessary precautions to have a perfect internet connection on the day of the act. In case of technical failure or impossibility, such problems must be properly proven in order for the judge to accept the justification, after all, it is known that such failures can occur for reasons beyond the will of the judicial authorities.
Finally, it is important to remember that the virtual hearing is already a part of the forensic everyday life and therefore the essential procedures and tests for carrying out one of the most important (if not the most relevant) actions cannot be ignored. in the process of work..
II – telepresence: hearings and sessions held in a physical environment outside judicial units.
Ricardo Calcini has a master’s degree in labor law at PUC-SP, professor of labor law at FMU, work coordinator at Editora Mizuno, member of the technical board of the journal Síntese Trabalhista e Previdenciária, academic coordinator of the project “Prática Trabalhista” (ConJur), member and researcher at Studija group for contemporary labor law and social security at the University of São Paulo (Getrab-USP), at Gedtrab-FDRP/USP and at Cielo Laboral.
Leandro Bocchi de Moraes is a postgraduate Lato sensu in labor law and labor procedural law at the Escola Paulista de Direito, postgraduate Lato sensu doctorate in contract law at the PUC-SP, postgraduate in human rights at the Center for Human Rights of the Faculty of Law of the University of Coimbra, member of the Special Commission for Labor Law OAB-SP, auditor of the Court of Sports Justice Paulista Federation of Judo and researcher in the core “O Trabalho Além do Direito do Trabalho”, at USP.