A distribuição do ônus da prova no tema 1.118 do supremo tribunal federal (STF): uma análise crítica da fragilidade probatória do trabalhador

Abstract

The subsidiary liability of the Public Administration has been the subject of intense debate in recent years, especially in view of the frequent cases in which outsourced companies hired by the government fail to pay their employees’ labor entitlements. In such situations, the worker’s option is to file a lawsuit against both the employer and the service recipient, that is, the Public Administration. In this context, Theme 1,118, decided by the Federal Supreme Court (FSC), examined the set of norms and previously consolidated understandings with the purpose of establishing a thesis regarding the allocation of the burden of proof in cases involving labor default by these companies. Although there is no controversy as to the possibility of holding the government subsidiarily liable, the core issue lies in determining under which circumstances this liability is established, under what conditions, and who must prove the alleged facts. Direct Action of Constitutionality No. 16 sets the understanding that the Public Administration can only be held liable when there is culpa in vigilando or culpa in eligendo on the part of the government. Thus, only in cases of failure to fulfill a duty or to properly supervise the contracted company would the government be required to pay the outstanding labor debts. However, divergences persisted within the Labor Courts, which frequently imposed upon the government the burden of proving that it had carried out proper oversight and that no culpa in eligendo or culpa in vigilando occurred. Faced with court decisions assigning the burden of proof to the State, the State of São Paulo filed an Extraordinary Appeal arguing the opposite. The matter was recognized as having general repercussion, culminating in the FSC’s judgment of Theme 1,118. Ultimately, the established thesis determined that it is the worker’s responsibility to prove the Public Administration’s omission, imposing on them the burden of demonstrating the absence of oversight that allegedly allowed the contractual breach to occur. However, this creates a significant procedural asymmetry, since the government holds all information, documents, and administrative records related to contract supervision, which are generally not easily accessible to the employee. Thus, Theme 1,118 increases the worker’s vulnerability by requiring them to produce a diabolical proof—a negative proof—aimed at demonstrating the absence of a fact.