Marília Silva de Melo
Lawyer at Marcos Martins Advogados
The Fourth Panel of the Superior Labor Court dismissed the claim of the plaintiff, who worked as a business consultant, for compensation for existential damage, better known as moral damage, due to his exhausting working hours.
At first instance, the claim was upheld and the company ordered to pay moral damages in the amount of R$5,000.00, with the judge understanding that excessive working hours cause damage in the form of in re ipsa, i.e. the damage is presumed and there is no need for concrete proof of the damage.
Under the terms of the initial claim, the plaintiff claimed that, due to the long working hours, he was deprived of family life. The company, on the other hand, argued that the work consisted of external work and, therefore, without any control or supervision of working hours, which is why, under the terms of article 62 of the CLT, there would be no need to talk about overtime.
Because the Regional Labor Court upheld the conviction, the company appealed to the Superior Court which, in a unanimous decision by the 4th Panel, dismissed the conviction for existential/moral damages.
According to the rapporteur, Minister Alexandre Ramos, the understanding of the first instance and the Regional Court is at odds with the case law of the TST, since the higher court understands that the fulfillment of strenuous working hours through the provision of regular overtime, in itself, does not result in existential damage, and that the actual demonstration of the damage is necessary, i.e. the damage to family and social life must be effectively proven.
For the reporting minister, in the case under analysis there was no effective proof of damage resulting from the overtime, nor that the employee was prevented from socializing, family life, or if there were changes in his personal projects, ruling out the company’s condemnation to pay existential damages.
