Heloisa de Alencar
Lawyer at Marcos Martins Advogados
The importance of civil liability for professional practice in the field of Labor Law is indicated by the fact that among the most demanded matters in the Labor Courts in 2016, compensation for moral damage ranks 2nd in the Labor Courts and 3rd in the Regional Labor Courts, only behind claims relating to termination of the employment contract (severance pay and unemployment insurance) and remuneration. Compensation for material damage ranks 9th and 16th respectively, according to data released by the National Council of Justice (CNJ).
While the employer, as a rule, is subjected to risks of a patrimonial nature, the employee is exposed to mostly bodily risks, putting their own life or psychophysical integrity at risk, in a work environment that is controlled by the employer, who has a duty of protection, prevention and precaution.
With the entry into force of Law 13.467/17, there was a significant innovation with regard to pecuniary damage, which now has its own legal rules in the CLT, in its articles 223-A to 223-G.
For the right to compensation to be invoked, there must be damage, which is the determining element for the existence of civil liability. The duty to indemnify is a successive legal duty to recompense or compensate for the damage resulting from the violation of an original legal duty.
In order for there to be full reparation for the damage, the victim must be restored to their previous status, to the greatest extent possible, as a form of justice. However, in the event of excessive disproportion between the seriousness of the fault and the damage, the judge may equitably reduce the compensation, in accordance with article 944 of the Civil Code[1].
There are two types of damage: pecuniary (material) damage and extrapatrimonial (moral) damage.
Property damage is characterized by a reduction in the victim’s assets, whether in terms of tangible or intangible property.
Property damage can also result from damage to personality rights, such as physical and psychological integrity, image and honor. Expenses for health treatment as a result of an accident at work, or the loss of an employer’s clients as a result of defamation by an employee, fall within this category.
In the case of off-balance sheet or moral damage, which is guaranteed by the Federal Constitution in its article 5º, V and X, this can be conceptualized as “pain of the soul”, in other words, as the feeling of suffering and humiliation, or even damage resulting from the violation of an asset or attribute of the personality (personality right) that affects the dignity of the human person, and can be combined with material damage.
Furthermore, when this premise is adopted, it means that moral damage is not conditional on experiencing psychological pain. What’s more, if these feelings do not originate from the violation of a personality right, there can be no question of non-pecuniary damage.
The causal link is a prerequisite for the duty to indemnify to be analyzed, i.e. only damage that is a consequence of the unlawful act can be indemnified.
Brazilian law adopts subjective liability as the predominant reference in relations between private individuals (Civil Code, art. 927)[2].
This means that, as a general rule, in addition to the damage itself, the duty to compensate presupposes the commission of an unlawful act in the strict sense (Civil Code, art. 186)[3] or abuse of rights (Civil Code, art. 187)[4]. An unlawful act in the strict sense corresponds to culpable voluntary conduct (damage or fault in the strict sense) on the part of the agent which violates a legal duty and causes damage to a third party.
In the field of labor relations, subjective civil liability is directly related to corporate fault. Furthermore, very slight fault still generates the duty to compensate, although the amount of compensation may be reduced in this case. Specifically in cases of damage resulting from accidents at work, Article 7, XXVIII of the Constitution expressly mentions the employer’s intent or fault.
Abuse of rights is characterized when the holder of a right, in exercising it, manifestly exceeds the limits imposed by its economic or social purpose, by good faith or by good customs (Civil Code, art. 187). The abuse of rights, according to this legal definition, is not guided by the idea of guilt in its traditional sense, but by the limits imposed by good faith, good customs and the economic or social purpose of the right. It is an unlawful act of an objective nature, based on the means or manner of exercising a right or legal position, and proof of fault is unnecessary.
In Labor Law, there is a tendency for the doctrine and the Courts to admit the supplementary application of art. 927, sole paragraph, of the Civil Code in labor relations, given the supplementary nature of Civil Law (CLT, art. 8) and the fact that the legal definition of employer also mentions that it is responsible for the risks of the business (CLT, art. 2). This applicability of strict liability in labor relations has even covered cases of accidents at work, despite the fact that the text of article 7, XXVIII of the Constitution points to subjective liability.
As such, it can be concluded that civil liability in labor relations is one of the most demanded issues before the Labor Courts, according to data from the National Council of Justice. This is due to the peculiar nature of the employment contract, which involves doing something that compromises the employee’s own biopsychic integrity, as well as the structuring nature of the power of employment and its effects on personality rights. Despite the importance of the legal certainty sought with the change made by Law 13.467/17, it cannot be implemented in such a way as to create a more restrictive and priced legal regime for compensation, placing the worker in a situation of sub-citizenship, especially when compared to the legal regime for off-balance sheet damage in other areas of law.
[1] Art. 944. Compensation is measured by the extent of the damage.
Sole paragraph. If there is an excessive disproportion between the seriousness of the fault and the damage, the judge may equitably reduce the compensation.
[2] Art. 927. Anyone who, as a result of an unlawful act (arts. 186 and 187), causes damage to another, is obliged to make reparation.
Sole paragraph. There will be an obligation to repair the damage, regardless of fault, in the cases specified by law, or when the activity normally carried out by the author of the damage implies, by its nature, a risk to the rights of others.
[3] Art. 186. Anyone who, through voluntary action or omission, negligence or recklessness, violates a right and causes damage to another, even if exclusively moral, commits an unlawful act.
[Art. 187: The holder of a right who, in exercising it, manifestly exceeds the limits imposed by its economic or social purpose, by good faith or by good customs, also commits an unlawful act.
