The pricing of compensation for moral damages caused by labour reform (Law 13.467/2017)

Abstract

The purpose of this article is to stimulate discussion on the pricing of off-balance sheet damages in labor relations, in view of the changes implemented in the Consolidation of Labor Laws (CLT), in Title II-A, specifically to articles 223-A to 223-G. , innovated by the Labor Reform, approved by Law 13,467 / 2017. Through a qualitative approach and essentially bibliographic data collection, we sought to analyze the processing of off-balance sheet damage before and after Labor Reform. It was based on the analysis of the scenario prior to the new legislation, which had no specific treatment of the subject in the CLT, serving in a subsidiary way the Federal Constitution of 1988, the Civil Code of 2002, as well as other sparse legislations at the time of consideration of the specific case in judicial protection. However, it was found that the new legislation restricted the assessment of off-balance sheet damage to the scope of the amended CLT, which would constitute the pricing or pricing of off-balance sheet damage in labor contracts. Such a charging system is prohibited by the Federal Constitution of 1988, thus leading to the unconstitutionality of the new legislation, since it would contradict the principle of human dignity, reasonableness, proportionality, as well as equality. Said unconstitutionality was challenged by the Direct Action of Unconstitutionality 3082 before the Federal Supreme Court, still without judgment by that Court. Notwithstanding the lack of appreciation of the aforementioned ADI, a clear unconstitutionality was found on the legislated matter, thus constituting an imbalance in the legal relationship to the detriment of the worker.