ORIGINAL ARTICLE
CUNHA, Lucas Pereira [1], SENA, Max Emiliano da Silva [2]
CUNHA, Lucas Pereira. SENA, Max Emiliano da Silva. Reparation of off-balance sheet damage from a constitutional-labor perspective: A critical approach to the valuation limits set by the labor reform. Revista Científica Multidisciplinar Núcleo do Conhecimento. Year 05, Ed. 09, Vol. 03, pp. 60-86. September 2020. ISSN: 2448-0959, Access link: https://www.nucleodoconhecimento.com.br/law/off-balance-sheet-damage, DOI: 10.32749/nucleodoconhecimento.com.br/law/off-balance-sheet-damage
ABSTRACT
This article aims to research response to the theme consistent problem in the following questions: What is the constitutional perspective of off-balance labor reparation? What are the possible positive and negative aspects of the limitation of values established by the labor reform of 2017 for the determination of compensation for the practice of extra-asset damage resulting from employment relationship? The theme is currently important, given the favorable positions and contrary to the setting of the limits of compensation for moral damage, so that it is intended to contribute to the discussion through a critical research, which proposes to research the theme in its various possibilities. In the end, it will be possible to observe that there are positive and negative points in relation to the limitation of the values of reparation for extra-asset damage, and it is up to the interpreters to take positions more in line with the solution of the concrete cases. We used the method of deductive approach and dogmatic-legal research of bibliographic nature, with the consultation of works, jurisprudence and legislation.
Keywords: Reparation, Off-asset damage, 1988 Constitution, Labor reform, Dignity of the human person.
INTRODUCTION
The law, considering the constant changes of an increasingly liquefied society, has undergone numerous transformations in all fields, from issues related to the private life of individuals, as well as problems involving collective and diffuse rights.
Labor law was not left out of these changes. Law No. 13,467 of July 2017 brought numerous changes in the juslabor alum, changing, repealing and adding numerous provisions in the Consolidation of Labor Laws (CLT).
In this article, the specific focus is labor reform involving the charging of damages of an extra-asset nature, brought about by the addition of §1, art. 223-G, CLT.
The theme generated enormous controversy, and was even the subject of immediate change by provisional measure, n. 808/2017, which was closed on April 23, 2018.
What is intended with this text is to investigate the following questions: what is the constitutional perspective of off-balance labor reparation? What are the possible positive and negative aspects of the limitation of values established by the labor reform of 2017 for the determination of compensation for the practice of extra-asset damage resulting from employment relationship?
To this end, in addition to this brief introduction, the first chapter will deal with the foundations of constitutional order and civil and labor perspectives on moral or extrapatrimonial damage. In the second chapter, the central part of this research will be analyzed the treatment given by the Labor Reform to the extra-asset damage, as well as the favorable and unfavorable arguments about the charge of the damage, without any pretense of convincing the reader, but presenting to him the “two sides of the coin”. Finally, the final considerations on the theme researched will be made.
1. CONSIDERATIONS ABOUT OFF-BALANCE SHEET DAMAGE
The extra-patrimonial damage already amplified in the light of the doctrine and jurisprudence in force had its application in the labor sphere from the legal texts contained in the Constitution of the Republic of 1988, in its art. 5, X, and in the Civil Code in articles 186, 927 and following.
Law 13.467/2017, called labor reform, inserted its own title to deal with the extra-asset damage from articles 223-A to 223-G, CLT.
Before, however, the advent of labor reform, with regard to the competence of the Labor Court to assess demands involving the so-called moral damage, constitutional amendment no. 45 established in Article 114, VI, of the 1988 Constitution, that that specialized justice would be competent to settle claims concerning such damages caused as a result of the employment contract.
From this modification, the logic of labor law allied to the work process becomes a reference for the application of extra-asset damage with regard to the employment relationship and the employment relationship, except for the cases safeguarded by the Binding Summary No. 22, the Supreme Court (STF).
Currently, there is a much larger view of moral damage, nicknamed extra-patrimonial damage, because, in addition to covering that first, it also analyzes issues related to goods called personalíssimos. In this sense, it is worth mentioning the lesson of Cavalieri Filho (2008, p. 81):
Thus, if we consider that off-course damage is the genus (more comprehensive sense) and that moral damage is one of the species of extrapatrimonial damage (immaterial) it can be said that the extra-asset damage is subdivided into: death damage, aesthetic damage, moral damage, psychic damage, and even a new classification that has been recognized by jurisprudence and doctrine in the field of labor law, existential damage.
The fact is that the notion of moral damage has been amplified over time, especially by the fact that social relationships are transformed in stride. What justifies the reflection pointed out by Oliveira (2013, p. 236):
The wide territory of moral damage, the subtleties of its content and the progressivity of its scope make it difficult to formulate a concept that can encompass all the hypotheses that characterize it. As André Gustavo Andrade points out, moral damage is a concept under construction and, with social development and the consequent evolution of personality rights, tends to be expanded to achieve situations not yet considered.
However, in the search for standardization or legal certainty, the labor reform tried to objectively conceptualize what it called extra-patrimonial damage, introducing in the CLT art. 223-B, which provides: “cause damage of an extrapatrimonial nature the action or omission that offends the moral or existential sphere of the individual or legal entity, which are the exclusive holders of the right to redress”. (BRASIL, 2020a, p. 30).
It is evident that the conceptualization brought by the legal provision does not exhaust the theme of extra-patrimonial damage, however, the labor reformator text already brings a direction, including, with the express provision that the legal entity (the employer) can also suffer and demand reparation for possible moral damage.
1.1 CONSTITUTIONAL FOUNDATION
The possibility of reparation for off-asset damage is not a doctrinal or jurisprudential construction. The institute has a seat in the Constitution of the Republic of 1988, not only in specific provisions, but also in the normative principles that ensure the centrality of the human person in the new order.
In Chapter I, which takes care of “individual and collective rights and duties”, part of Title II, entitled “Fundamental rights and guarantees”, the Brazilian Constitution of 1988 provides for article 5, item V, to be guaranteed the right of reply, proportional to the injury suffered, in addition to the compensation due, in favor of the victim of material, moral or image damage (BRASIL, 2020b).
In the same Article 5, item X, the original constituent established the inviolability of intimacy, private life, honor and image of persons, by guaranteeing the right to compensation for possible material or moral damage arising from the violation of these legal assets (BRASIL, 2020b).
The rights provided for in these constitutional provisions are in line with the new normative structure shaped by the 1988 Constitution, which erected the dignity of the human person to the condition of foundation of the Federative Republic of Brazil in article 1, item II.
In doing so, by elevation of the human being and his dignity to the level of foundation of the Republic, the Constitution of 1988 says firmly, safely and eloquently that in the Brazilian State the human person enjoys the greatest prominence, being the center of the whole system, so that the entire legal system, all the governing bodies, all political actions and all particular conducts owe the necessary respect to the human person (SENA , 2016).
In the same venom, Piovesan (2014, p. 61) discusses the relevance conferred on the human person in the new order established in 1988:
Human dignity and fundamental rights are the constitutional principles that incorporate the demands of justice and ethical values, giving axiological support to the entire Brazilian legal system. In the order of 1988, these values are endowed with a special expansive force, projecting throughout the constitutional universe and serving as an interpretative criterion of all norms of the national legal system.
Therefore, the repair of moral damage has a constitutional seat, and this is not only due to its reference in specific provisions in the Constitution, but by reason of the new centrality adopted, no longer focused on the State itself and its organizational structure, but rather on the human person and on the promotion and defense of its dignity.
Protection in favor of the individual needs to take place in the deepest and most broad way possible, both in the material and immaterial aspect, covering, in the last sense, the protection and repair of his honor, image, freedom, respectability, consideration and other immaterial attributes, which concern the intangible patrimony of each person.
From this perspective, it is clear that items V and X, of Article 5, of the Constitution of 1988, systematically and primarily connected with all its normative structure, based the principle rule of full reparation of damages resulting from the violation of honor and image.
The true meaning of constitutional reparation of moral damages translates the idea of full indemnification, as a way to fully protect the individual in all its values, which requires the percucient examination of all the consequences caused by the harmful conduct in favor of the offended in their intimacy (REIS, 2002).
On the other hand, compensation for moral damages cannot mean unrestrained enrichment to the detriment of the offender, who, although he has an obligation to repair the damage, cannot suffer an unrestrained attack on his estate.
The same considerations related to image protection can be applied to the legal entity, in order to be entitled to compensation in case of damage suffered, since it also has an intangible assets with the company, which can be misplaced and, therefore, liable to indemnification.
Once these considerations are made about the prediction of the repair of extra-asset damage in constitutional view, in the following topics the institute will be analyzed in its civilist and labor perspectives, for a better understanding of the theme.
1.2 CIVILIST PERSPECTIVE
Private law has long been concerned about personality law, especially issues involving eticities in legal relations.
The 2002 Civil Code, more forcefully, dedicated its own chapter to address the rights of personality. In Tartuce’s lesson (2018, p.9), “personality rights can be conceptualized as those rights inherent to the person and his dignity.”
In the affirmation of personality protection values such as honor, physical and psychological integrity, life, image and name are protected by common law. The natural person, or even the legal entity, in what is compatible, enjoys some support.
There is also, especially in the doctrine, some divergence as to the denomination of damage of a non-material nature, and the expression moral damage is the most used, however, the extra-patrimonial damage has also been widely nicknamed, both in doctrine and jurisprudence.
About the denomination is worth highlighting the lesson of Gangliano and Pamplona Filho (2018, p.933):
This is because we adopt the expression “moral damage” only because it is widely enshrined in doctrine and jurisprudence. However, we recognise that it is not technically appropriate to qualify all forms of injury that cannot be financially fixed. Even the expression “off-balance sheet damage”, also commonly used in legal language, can become equivocal, especially if compared with the conception of moral heritage, increasingly used in doctrine and jurisprudence, which supposedly would encompass, among other rights protected by the legal system, intimacy, private life, honor and image of the person.
The aim of this article is not to polemize the nomenclature given to the damage of a moral nature, but only to alert readers about the dimension and scope of protection given to the natural person, extended, in what is compatible, to legal entities, and it is important to emphasize that labor law, at the time of labor reform, chose to use the nomenclature of extrapatrimonial damage.
Following the widely used denomination, and in a way, more adore to common sense, the indoctrinators Gangliano and Pamplona Filho (2018, p. 932), thus conceptualize the moral damage:
Moral damage consists of the injury of rights, the content of which is neither pecuniary nor commercially reducible to cash. In other words we can affirm that moral damage is one that injures the very personal sphere of the person (his personality rights), violating, for example, his intimacy, private life, honor and image, constitutionally protected legal assets.
It is common to find in doctrine the division of moral damage in direct and indirect, and that first is the damage that causes direct injury to a non-patrimonial right, such as the honor of another; the second, when it reaches a property of patrimonial nature, ends up causing a non-material wound, as in the case of breaking an object left to be remembered by a deceased relative.
The moral or extrapatrimonial damage or non-material is presented as a form of sanction to the cause of pain, of the grouping of the spirit.
The legal basis for the indemnification to be applied in civil law is provided for in Article 186 of the Brazilian Civil Code, which thus establishes: “He who, by action or voluntary omission, negligence or recklessness, violates the right and causes harm to others, even if exclusively moral, commits an unlawful act.” (BRASIL, 2002c, p. 17)
From article 927 of the Civil Code, the question of civil liability begins, where rules are established concerning the reparation for the damage caused, even in art. 944 of the same codex, the way of measuring the extent of the damage is pointed out, for its conversion into pecunia, if not see; “Art. 944. The indemnity is based on the extent of the damage. Single paragraph. If there is an excessive disproportion between the severity of the guilt and the damage, the judge may equitably reduce the indemnity.” (BRASIL, 2002c, p.68).
Following the regulatory legal provisions of civil reparation, there are issues of mitigating and aggravating nature, for the definition by the court regarding the arbitration of the pecuniary value of moral damage.
Finally, without the intention of exhausting the matter with regard to extra-patrimonial damage in civil law, it should be noted that the Civil Code of 2002 ended the discussion on the applicability of moral damage to legal entities, explicitly mentioning in its art. 52 that personality rights are applicable, in what is compatible, to legal entities.
1.3 LABOUR PERSPECTIVE
It is a fact that Labor Law is an autonomous discipline, with its own principles and rules, as already sustained and established in academia and in the field of law.
However, it cannot be denied that labor law is born from civil law (private law), especially with regard to so-called contracts for the endeade of common law.
In this sense the lesson of the celebrated Professor Süssekind (2000, p.141):
If the first rules concerning contractual relations were inserted in the Civil Codes; if labor law, by becoming an autonomous branch of law, has separated itself from civil law, it is unquestionable that the connections between the aforementioned branches of legal science still have to be quite narrow.
This relationship with civil law was so present in the labor sphere that until the advent of Constitutional Amendment No. 45 of 2004, the common justice, and not labor, was competent to judge and assess moral damages, even if arising from an employment relationship.
In a way, Law No. 13,467/2017, nicknamed labor reform, reaffirmed this proximity between civil law and labor law by establishing in §1, of Art. 8, of the CLT, that Civil Law will be used as a subsidiary source of labor law.
It is certain that labor law has its autonomy for the construction of legal relations between the worker and service taker, or between the employee and the employer.
Thus, the legislator understood the good to build, from the labor logics and, one cannot be naïve, from the target of capital, what was called extrapatrimonial damage, with rules, concepts and proper dosage.
Professor Garcia (2017, p.102) teaches that labor moral damage is “that occurred within the scope of the employment contract and due to its existence, involving the two poles of this legal relationship (employment), that is, the employer and the employee”.
The applicability of civil law as a subsidiary source for the civil liability of the employer was very reckless, since the judge, although with a certain alignment brought by common law, had ample freedom for conviction and, more over the course, quantification of moral damage.
It is no secret that the emergence of the CLT title reserved for extra-asset damage is born in a historical context resulting from the change in the national political scenario. Law no. 13,467/17 emerges just as it takes over the Vice-President of the Republic due to the impeachment of the then president-elect.
It is not intended here to question the legitimacy of the reform text, just to make the reader aware of the sociopolitical conditions in which the text of the labor reform arises, suppressing, modifying and creating numerous articles of the Consolidation of Labor Laws.
The legislator of the reform, considering the way he disposed of the rules regarding the extra-asset damage, had an immense concern to restrict the action of the judiciary, bringing in a certain way a parameterization and, even more, predictability with regard to civil reparation for damages of an extrapatrimonial nature.
This predictability, generating contrary and favorable positions, under endless arguments, can be found very crystalline in §1 of Art. 223-G of the CLT, where predefined values are established for the quantification of extra-asset damage, that is after analyzing a series of conditions provided for in the caput of the same legal device.
In addition to the central issue addressed in this article, that is, the quantification of out-of-asset damage, we have inserts that deserve to be highlighted, such as the compensation of the employer for damages of an immaterial nature and also the notion of extent or scope of the damage, involving not only the cause of the damage, but also all those who, in some way, participated directly or indirectly for it to occur.
All these questions cause the labor standard to establish definitions, criteria and conditions peculiar to the configuration and applicability of extra-asset damage.
2. TREATMENT CONFERRED ON OUT-OF-EQUITY DAMAGE BY LAW No. 13,467/2017 (LABOR REFORM)
The labor reform, carried out by Federal Law No. 13,467 of July 13, 2017, introduced in the Consolidation of Labor Laws (CLT) Title II-A, called “Do dano extrapatrimonial” and composed of Articles 223-A to 223-G.
The introduced devices established parameters and vectors for the analysis of the configuration and quantification of the repair of moral damage in the labor relations.
In its opinion on the labor reform bill, the Special Committee of the House of Representatives pointed out that day after day the filed of lawsuits aimed at compensation for moral damages, in addition to existential damage. Despite the constitutional provision for the reparation of moral damage, the Special Committee agreed not to agree with the lack of criteria in its fixation.
According to the opinion, considering the vacuum in labor laws on the subject, requests for compensation for moral damages are formulated on the basis of civil legislation, which would also not offer objective criteria to take care of the matter.
Moreover, in the opinion of the Special Committee, indemnities that do not take into account the economic capacity of the offending person (employee or employer) are common, which would eventually worsen in the case of employers, to the extent that actions of the company may generate values that hinder or even make the continuity of the enterprise impossible. (BRASIL, 2020d).
At the outset, the legislator based that the rules inserted in the Consolidation of Labor Laws apply only to the reparation of damages of an extra-asset nature that occurred as a result of an labor relationship, so that other legal relations are excluded.
The damage of a non-patrimonial nature arising from the labor relations is caused by action or omission that violates the moral or existential sphere of the natural or legal person, as exclusive holders of the right of reparatory law.
They were listed as legal assets inherent to the physical person that can be protected: honor, image, intimacy, freedom of action, self-esteem, sexuality, health, leisure and physical integrity. As far as the legal entity is the legal entity, the assets protected are: the image, the brand, the name, the business secrecy and the confidentiality of the correspondence.
In the aspect of liability, any person who has contributed to the occurrence of the offensive conduct may be held responsible for the reparation, taking into account the proportion of their omissive or commissive participation.
The claim for redress for moral damages may be formulated cumulatively with the compensation for material damages arising from the same event ineffectuating the person of the rightholder. In this case, in the eventual sentencing decision, it will be up to the judge to discriminate the amounts referring to each type of reparation, that is, it will indicate the amount of compensation for moral damages and the amount of compensation for material damages.
In the assessment of the request for redress, the judge must observe certain vectors and parameters, which are: a) nature of the legal good whose protection is requested; b) intensity of suffering or humiliation imposed on the victim; c) possibility of physical or psychological overcoming of damage; d) personal and social reflexes of omissive or commissive conduct; e) extension and duration of the effects of the offense; f) conditions in which the offense or moral injury occurred; g) degree of deed or guilt; h) occurrence or not of spontaneous retraction of the offender; i) effective effort of the offending to minimize the offense; j) forgiveness, tactical or express; k) social and economic situation of the parties involved; and l) degree of publicity of the offense. (BRASIL, 2020a).
In Article 223-G, §1, of the CLT, introduced by Law No. 13,467/2017, maximum and minimum limits were set for the compensation to be paid to each of the offended, if the judge deems the request for reparation to be well founded. According to that device, the following parameters shall be observed, unless the accumulation is sealed:
I – offense of a mild nature, up to three times the last contractual salary of the offended;
II – offense of an average nature, up to five times the last contractual salary of the offended;
III – offense of a serious nature, up to twenty times the last contractual salary of the offended;
IV – offense of a very serious nature, up to fifty times the last contractual salary of the offended. (BRASIL, 2020e, p.06)
Thus, criteria that take into account the nature of the offense (mild, medium, serious and very serious) and the contractual value of the salary of the offended, whose maximum ceiling corresponds to fifty times that salary, in the case of offense of a very serious nature.
In the event that the offender is a legal entity, the fixing of the indemnity should observe the same parameters established above, taking into account the contractual salary of the offender.
Finally, in the event of recidivism between identical parties, the judgment is allowed to double the amount of compensation imposed on the offending party.
2.1 VIEWS ON THE SUBJECT
The innovations brought about by the labor reform raise relevant discussions, which highlight the positive and negative aspects of the rule applicable to the repair of extra-asset damage resulting from labor relations.
In the following subtopics, the points considered positive and negative will be analyzed, both from the perspective of the employer and from the perspective of the employee, in order to offer better conditions for a broader examination of the theme.
2.2 FAVORABLE ARGUMENTS
Initially, there is no form of convincing of the reader regarding the taxability of immaterial damage in labor law. What is sought here is only to present the arguments that have established the incursion of taxactivity brought in the reformattor text of the Consolidation of Labor Laws.
On the one hand, the tablement of off-balance sheet damage is totally incoherent, considering the nature of the good to be protected, since honor, dignity, health and life cannot be priced in any way. In this respect, Stoco’s valuable lesson (2013, p.154):
In this respect, because the gravame in the moral plane has no mathematical expression, nor does it materialize in the physical world and, therefore, it is not compensated, but only compensates, is that one cannot speak in proof of a damage that, strictly speaking, does not exist in the material plane.
The issue of pricing or quantification has already been the subject of consideration by the Supreme Court of our country, when it decided on the unconstitutionality of the charging of moral damage provided in the Press Law (COSTA, 2018).
It is not surprising that labor reform as a whole, especially the issue of the charging of moral damage in the juslaboral sphere has caused numerous manifestations of repudiation and dissatisfaction. At this point, the text published by the jurist and labor judge Jorge Luiz Souto Maior, entitled “Impactos do Golpe Trabalhista”, referring to Law 13.467/2017 (MAIOR, 2017) stands out.
However well articulated it is a text or an oral manifestation in which the narrative sustains the application of a coup, of a cheat, the infeasibility of dialogue emerges and, even more, the expectation that the other side, although mistaken, has acted in good faith.
Law regulates social relations in basically all its areas, from issues of collective and diffuse interest, to situations that strictly concern the individual and his intimacy.
Labor Law is not isolated in the universe of its field, it goes far beyond the borders of the legal field itself. To think of labor law without recognizing its interrelations with civil law, corporate law, tax law, social security law, among others, is to fade it to a universe from which, in isolation, it is not possible for it to survive.
These crossings, however, are not restricted in the inter relations attached to the legal field, and labor law communicates with the Accounting Sciences, with the Administration, with sociology, with Philosophy, with economics and many other fields of knowledge.
The social achievements resulting from juslabor relations are extremely important for the development of a society. However, law regulates the society of the present, with its changes, transformations and volatility.
Ideally, transformations in the legal field, especially when it comes to issues related to social achievements, could be widely debated until it became a rule, which did not take place, by far, with labor reform.
However, returning to the issue of charging, what was sought with the pricing of the damage, it was not, as it can be seen, to say how much human suffering is worth, but only to establish mathematical indicators that allow predictability, an indispensable requirement for capital.
Regarding predictability, it is worth highlighting the vote of the rapporteur Rogério Marinho of the labor reformata project in the Chamber of Deputies, brought by Peixoto (2017, p.114):
The absence of objective criteria and the high level of discretion conferred on the magistrate in the judicial settlement of these indemnities bring legal uncertainty, harming the isonomy of treatment that must be given to all citizens. It is not uncommon for disparate indemnities to be fixed for similar injuries on different victims. Likewise, indemnities that disregard the economic capacity of the offending, be it the employee or the employer, a situation that is aggravated in the case of employers, because actions of the prepositions can generate values that hinder, or even make impossible, the continuity of the enterprise.
Legal certainty in business is an indispensable element in the constitution of new enterprises, either from the perspective of business law or from the perspective of business administration.
No investor in forming a business company or establishing an individual entrepreneur does so without soothing the risks of the business. Among the risks of the enterprise are those of a fiscal, contractual, commercial and labor nature.
It is essential to know the costs so that one can, for example, arrive at a price composition, working capital required, among other issues involving capital. However, it is undeniable that the owner of the capital invests in a particular undertaking for the purpose of obtaining profit.
The fact of establishing itself in the market, as described in the concept of entrepreneur by art. 966, of the Civil Code, is an element of the conceptual composition of the entrepreneur, either in the form of society or in the individual level.
The uncertainty regarding the compensatory quantum of a possible extra-asset damage, where the dosage is at the sole discretion of one or more judges, causes in the entrepreneur great fear of investing, considering the high risk of becoming impractical the continuity of the company, and, consequently, the loss of committed capital.
In addition, it is worth noting that the company has a function that goes far beyond the satisfaction of its entrepreneurial partners, the destruction of a business society, however small, causes social impacts of far reach. In this course, when dealing with the principle of the social impact of the company crisis, teaches the celebrated indoctrinator Coelho (2014, p.99):
Due to the social impact of the company’s crisis, its preservation and solution will be intended not only to protect the interests of the entrepreneur, its creditors and employees, but also, when necessary, to the protection of metaindividual interests related to the continuity of business activity.
A business company, in addition to serving the economic interests of its partners, shareholders, investors and managers, also benefits its workers, employees or not, consumers, suppliers, the tax, other companies and even its surroundings.
The entrepreneur, as cruel as such a consideration may seem, needs a predictable and stable environment, so that it can establish itself in a sustainable way, keeping the business spinning.
When a company fails to pay for the vacation of its employee, which is a legal obligation, it is possible to predict exactly the amount that should be disbursed in a labor conviction, since the rules on the payment of vacation are very well outlined in labor legislation.
Likewise, having a pre-established notion of how much indemnification can achieve a possible conviction in damages of a non-equity nature, allows the entrepreneur to calculate more closely the risk of the business in which he is investing.
It is reaffirmed, however, that this is not a defense or attempt to convince the charging of moral damage in the labor sphere, but only the pointing of reasons that justify, in the business target, the tablement of the extra-asset damage brought by §1, art. 223-G, the Consolidation of Labor Laws, added by Law no. 13,467/2017.
2.3 CONTRARY ARGUMENTS
The setting of limits for the quantification of the amount related to indemnification for the practice of off-asset damage includes several analyses, but necessarily must permeate its examination in the light of the constitutional principles established by the 1988 Constituent In relation to the theme.
The tableof the amounts of convictions in cases of reparation of extra-asset damage is not new in the Brazilian legal system, being worth bringing to the past, as previously mentioned, Law No. 5,250/1967 (Press Law), through which a table of values was instituted to quantify compensation for the practice of extra-asset damage resulting from illegal conduct, such as the publication of false news or offense to the dignity of a given person.
According to that law, it was established that the value of the journalist’s conviction, depending on the offense committed, would range from two to twenty minimum wages (Article 51). In addition, the company’s disclosing accountability was established, setting a maximum value of ten times the values fixed in the first provision of the law (Article 52) (BRASIL, 2020f).
The Supreme Federal Court (STF) faced a question about the compatibility of this table of off-asset damage with the Constitution of the Republic of 1988, that is, whether or not the instituted was approved by the new Constitution, especially because of the provisions of Article 5, items V and X, which materialize the principle of full reparation of damages in constitutional office.
In fact, in Extraordinary Appeal (RE) No. 396.386-4, judged on 06/29/2004, the 2nd Panel of the Supreme Federal Court (STF), with the rapporteurship of Minister Carlos Velloso, understood by the incompatibility of the instituting standard of the tableof the value of the extrapatrimonial (Press Law) with the Constitution of 1988, as follows:
CONSTITUTIONAL. CIVIL. MORAL DAMAGE. OFFENSE PRACTICED BY THE PRESS. INDEMNITY. CHARGING. Law nº 5.250/56 – Law and Press, art. 52. NON-RECEPTION BY CF/88, article 5, items V and X. RE INTERPOSED WITH GROUNDS IN POINTS “a” and “b”.
I – The judgment under appeal ruled that Article 52 of Law 5.250 of 1967 – Press Law – was not received by CF/88.
(…)
II – The 1988 Constitution lent the reparation resulting from the moral damage special treatment – CF, art. 5, V and X – wishing that the compensation resulting from this damage would be the broadest. Having put the issue in those terms, it would not be possible to subject it to the narrow limits of press law. If we did, we would be interpreting the Constitution in the direction of ordinary law, when it is common knowledge that laws should be interpreted in the direction of the Constitution.
III – Non-receipt, by CF/88, of Art. 52 of Law 5.250/67 – Press Law.
IV – Precedents in the Supreme Court in relation to art. 56 of Law 5.250/67: RE 348.826/RJ and 420.784/SP, Velloso, 2nd Class, 1st.6.2004. (BRASIL, 2020g, p. 01).
In this line of reasoning, in the Superior Court of Justice (STJ) was edited Summary No. 281, establishing that: “Compensation for moral damage is not subject to the pricing provided for in the Press Law.” (BRASIL, 2020h, p.371).
Later, in a concentrated control system, the Supreme Court ruled the Charge of Non-compliance with Fundamental Precept (ADPF) No. 130-DF, declaring the non-reception of the Press Law by the Constitution of the Republic of 1988, by expunction in full of Law No. 5,250/1967 of the Brazilian legal system, including, of course, all provisions relating to the charging of compensation for moral damage. (BRASIL, 2020i)
The substantial examination of the supreme court’s judgments leads to the conclusion that the 1988 Constitution ups the principle of full reparation of moral damage, so that, according to the understanding, any possibility of prior fixation or tablement of values for the purposes of indemnification for off-asset damage remains removed.
The interpretation of the constitutional provision related to full reparation has since consolidated the understanding about the infeasibility of a new law establishing prior charging of the value of moral damage, which began to enjoy consensus in Brazilian legal thought (MEDEIROS NETO, 2018).
Thus, in the event of an analysis of constitutional conformation, it is possible to conclude that the provisions introduced by Law No. 13,467/2017, with the insertion of Article 223-G, §1, in the Consolidation of Labor Laws (CLT) are not supported by the Constitution of the Republic of 1988, and are therefore embodyed with unconstitutionality.
However, in addition to underpaking the principle of full reparation, the charging of moral damage violates several other constitutional principles, such as the dignity of the human person, the social value of work, the social function of property, access to justice and equality, as well as affronts the ideals of justice so present in the current Constitution.
This is because the principle of integral reparation needs to be analyzed and applied, not in isolation, but through an interpretation that takes into account the various constitutional circuits that are systematized in the text of the Constitution.
The dignity of the human person, in this context, erected to the condition of the foundation of the Federative Republic of Brazil in Article 1, item IIII, of the Constitution of 1988, functions as the guiding thread of all interpretation on the subject, to the extent that it is the center of the constitutional system and the foundation and purpose of the legal order in force in Brazil, as explained in topic 1.1 , to which the reader is referred.
The principle of full reparation of moral damage has for purpose and foundation not only the patrimonial aspect, not least because it is not in truth an indemnification, but a reparation, since it is impossible to make indene an injury effectively practiced and that causes its deleterious effects on the moral and immaterial heritage of the person, being unfeasible the return to the status quo ante.
Its main objective is related to the imperiousness of reparation of the injury to the dignity of the human being and to his moral heritage, in a legal system that raised the respect and promotion of the dignity of the human person to a level of considerable prominence.
According to Dallegrave Neto (2008, p. 153),
[…] the effective reparation of the extra-asset damage, but that from the employment relationship, should represent a resessarcitory-preventive function. Thus, the amount of compensation should represent, at the same time, a financial compensation to the victim and a punishment to the agent capable of stimulating the reiteration of the levianpractice.
Each case, within its complexity and its peculiarities, must demand the fixation of values as moral damage that meet the need to repair the injury caused in favor of the dignity of the human person, and it is not feasible to fix in advance the value that should be given to the victim of the damage.
There is no way to measure pain and moral injury and not even establish the pecuniary value that would be appropriate to promote compensation in favor of the victim and, at the same time, fulfill the pedagogical role inherent to the institute.
The social value of the work also remains violated through the charge of extra-asset damage, as the foundation of the Federative Republic of Brazil, pursuant to Article 1, item IV, of the Constitution of 1988.
The constitutional foundation of the social value of work is viscerally imbued with the foundation of the dignity of the human person and has the power to promote the realization of this dignity in ensuring respect for all workers, through positive conduct, which aim at the promotion of social justice, and negative conduct, with the aim of protecting workers from any practice that harms them with dignity or who consider work as mere merchandise (SENA, 2019).
Work is not just a material livelihood. It is, first of all, an instrument of externalization of the aspects inherent to the human personality through the performance of some work activity, and therefore cannot be analyzed under the aspect of mere factor of business production.
Therefore, when defining the value of reparation for extrapatrimonial moral damage, the judge cannot and should not use the metric of the value of the worker’s salary and limited to the level adredemente fixed by the infraconstitutional legislature.
This limitation is unfounded in human dignity or on the value of work, because it takes into account only the material aspect, in this case, the value of the salary received by the worker. It is an attempt to introduce elements into the institute of moral damage that fit perfectly into the metric of the quantification of material damage, although such institutes have peculiar characteristics, foundations and purposes.
With regard to the principle of the social function of property, although the 1988 Constitution guaranteed the right to property, it imposed on it the fulfilment of a function capable of generating benefits for the whole society and not only for its owners.
From this perspective, the social function of property is observed when fundamental rights are respected in general and, according to Sena (2019, p, 134), especially regarding the business society, “provided that labor social rights, the social value of work and the dignity of the human person are observed, and property should also favor the well-being of entrepreneurs and workers”.
In cases of non-compliance with the social function of the property, the owner must bear the relevant sanctions, which must take into account the reparatory and pedagogical purpose of the measures to be adopted.
It is not consistent with the principles of human dignity, the social value of work and the social function of property to provide for measures that, in the end, end up encouraging non-compliance with the constitutional command, notably through the establishment of values for situations of violation, which will previously allow the offender to assess whether it is economically more advantageous to comply with or deviate from the precepts of the Constitution.
In relation to the principle of access to justice, understood not only through the possibility of triggering the Judiciary, but, rather, through obtaining a fair and adequate result for each case, it is understood that the charging of moral damage ends up in the promotion of decisions more consistent with this objective in each situation, permeated by its complexities and peculiarities.
Finally, in the approach in the light of the 1988 Constitution, it is also worth highlighting the violation of the principle of equality, by establishing differentiations of tariffs based on the value of the employee’s contractual salary. It is to say that the employee who earns a higher salary has a more refined dignity and deserving of a more generous indemnity, which, of course, does not find constitutional support.
As seen in chapter 2, Article 223-G, §1, of the CLT, introduced by Law No. 13,467/2017, set maximum and minimum limits for compensation to be paid to the offended, with the necessary observance of limits ranging from three times to fifty times the salary of the offended, depending on the mild, medium, serious or very serious nature of the offense.
Moreover, to establish unrestitable differentiations between the employees themselves, so it is insated, based on the value of their salaries, it was considered an employee a human being of second category in relation to those who are not employed or who do not present themselves as such at the time of the offense.
This is because if the offender is employed in service it will have to observe the limits established by the novel legislation. But if the offended is not employed, or if he is employed who is not in service at the time of the offense, the limits set will not apply. That is, there will be no charge for non-employees or employees who are not in service, since the tariff limits apply only to employees in service.
Employee status cannot be a factor of diminishing rights or an offense to human dignity, from which it was concluded that the element of discrimination is not legitimate and sufficient to support the differentiation harmful to the employee.
These are some considerations that embody a counterpoint to the setting of values for compensation for moral damage resulting from labor relations, as a provision of elements capable of provoking broader reflections on the theme in the reader.
3. FINAL CONSIDERATIONS
This chapter is entitled “final considerations” not without purpose, since this exhibition does not put an end to the discussion presented here.
As reiterated throughout the text, the objective suggested by this article was to offer critical provocations to allow for a broader analysis of the theme proposed for this research.
At the end of this exhibition, consistent with the proposed problem theme, it is said that the reparation of extra-patrimonial damage or moral damage is sat in the Constitution of the Republic of 1988, not only in specific provisions, but also in the normative principles that ensure the centrality of the human person in the new order.
The labor reform, carried out by Federal Law No. 13,467 of July 13, 2017, introduced in the Consolidation of Labor Laws (CLT) Title II-A, called “Do dano extrapatrimonial” and composed of Articles 223-A to 223-G.
The introduced devices established parameters and vectors for the analysis of the configuration and quantification of the repair of moral damage in the labor relations.
Criteria have remained that take into account the nature of the offense (mild, medium, serious and very serious) and the contractual value of the salary of the offended, whose maximum ceiling corresponds to fifty times that salary, in the case of offense of a very serious nature.
In the event that the offender is a legal entity, the fixing of the indemnity should observe the same parameters established above, taking into account the contractual salary of the offender.
In the event of arguments favorable to the setting of limits for compensation for moral damage, it has been that labor law is not isolated in the universe of its field, goes far beyond the borders of the legal field itself. To think about Labor Law without recognizing its interrelations with civil law, corporate law, tax law, social security law, among others, is to fade it to a universe from which, in isolation, it is not possible for it to survive.
The social achievements resulting from juslabor relations are extremely important for the development of a society. However, law regulates the society of the present, with its changes, transformations and volatility.
However, returning to the issue of charging, what was sought with the pricing of the damage, it was not, as it can be seen, to say how much human suffering is worth, but only to establish mathematical indicators that allow predictability, an indispensable requirement for capital.
Legal certainty in business is an indispensable element in the constitution of new enterprises, either from the perspective of business law or from the perspective of business administration.
No investor in forming a business company or establishing an individual entrepreneur does so without soothing the risks of the business. Among the risks of the enterprise are those of a fiscal, contractual, commercial and labor nature.
It is essential to know the costs so that one can, for example, arrive at a price composition, working capital required, among other issues involving capital.
The uncertainty regarding the compensatory quantum of a possible extra-asset damage, where the dosage is at the sole discretion of one or more judges, causes in the entrepreneur great fear of investing, considering the high risk of becoming impractical the continuity of the company, and, consequently, the loss of committed capital.
In the case of arguments unfavorable to the limitation studied, it is based that tablement of the values of convictions in cases of reparation of extra-asset damage is not new in the Brazilian legal system, it is worth bringing to the pastther Law No. 5,250/1967 (Press Law), through which a table of values was established to quantify the indemnification for the practice of extra-patrimonial damage.
The Supreme Federal Court (STF) faced a question about the compatibility of this tableof the extra-asset damage with the Constitution of the Republic of 1988, worse in the face of the constitutional principle of full compensation of damages.
In Extraordinary Appeal (RE) No. 396.386-4, judged on 06/29/2004, the 2nd Panel of the Supreme Federal Court (STF), with the rapporteurship of Minister Carlos Velloso, understood by the incompatibility of the instituting standard of the tableof the value of the extra-asset (Press Law) with the Constitution of 1988.
Later, in a concentrated control system, the Supreme Court ruled the Charge of Non-compliance with Fundamental Precept (ADPF) No. 130-DF, declaring the non-reception of the Press Law by the Constitution of the Republic of 1988, by expunction in full of Law No. 5,250/1967 of the Brazilian legal system, including, of course, all provisions relating to the charging of compensation for moral damage.
The substantial examination of the supreme court’s judgments leads to the conclusion that the 1988 Constitution ups the principle of full reparation of moral damage, so that, according to the understanding, any possibility of prior fixation or tablement of values for the purposes of indemnification for off-asset damage remains removed.
However, in addition to underpaking the principle of full reparation, in the context of contrary argumentation, it has been that the charging of moral damage violates several other constitutional principles, such as the dignity of the human person, the social value of work, the social function of property, access to justice and equality, as well as confronts the ideals of justice so present in the current Constitution.
Each case, within its complexity and its peculiarities, must demand the fixation of values as moral damage that meet the need to repair the injury caused in favor of the dignity of the human person, and it is not feasible to fix in advance the value that should be given to the victim of the damage.
Work is not just a material livelihood. It is, first of all, an instrument of externalization of the aspects inherent to the human personality through the performance of some work activity, and therefore cannot be analyzed under the aspect of mere factor of business production.
It is worth mentioning the violation of the principle of equality, through the establishment of differentiations of tariffs based on the value of the employee’s contractual salary. It is to say that the employee who earns a higher salary has a more refined dignity and deserving of a more generous indemnity, which, of course, does not find constitutional support.
Thus, it is concluded that the compensation for extra-asset damage resulting from labor relations has a constitutional seat, and should be analyzed in the light of the normative principles incarnated in the Fundamental Law. There are arguments that are favorable and contrary to the setting of limits for indemnification for extra-asset damage resulting from labor relations, in the perspectives of the company and the worker, so that the scholar is offered an element for a broader analysis of the issue and also for the deepening of scientific research in relation to the subject.
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[1] PhD student in Communication Sciences at UNISINOS – University of Vale do Rio dos Sinos, São Leopoldo/RS. Master in Religious Sciences from the United Faculty of Vitória/ES (2014). Specialist in Civil Law and Civil Procedure and Public Law at the Vale do Rio Doce Law School.
[2] Master’s degree in Public Law from FUMEC University. Specialist in Human Rights and Labor at the Higher School of the Public Prosecutor’s Office of the Union (ESMPU) and in Public Law by Fadivale.
Submitted: August, 2020.
Approved: September, 2020.
