Danos extrapatrimoniais e a reforma trabalhista: análise dos critérios adotados para fixação da reparação do dano extrapatrimonial no Título II-A da CLT

Abstract

The purpose of this paper is to present an analysis of Title II-A of the Consolidation of Labor Laws of Brazil, which deals with the institute of off-balance-sheet damages in labor relations. The issue is affected especially with regard to the criteria for fixing the indemnification quantum, in view of the adoption of pre-established ceilings to repair the damage, by stratifying it in an offense of a mild, medium, serious or serious nature, instead of the analysis of each concrete case by the free arbitration of the judge, using the principles of proportionality and reasonableness. In order to demonstrate the indispensable evaluation of the constitutionality of the current regulation, an analysis was made of the need to repair the off-balance damages, especially in the labor relations, as well as what would be the most fair parameters to promote the satisfactory repair. It was found that the renowned legal professors and operators of the law criticize the Title inserted by Law 13467 of 2017 in the CLT, from the attempt to isolate the situations of violation to the off-balance sheet property of the application of other provisions of the entire legal system; selection of the protected assets and of the persons legitimized to obtain reparation, and finally, on the criteria for fixing the indemnity. In view of this context, it is salutary to ponder the application of the rule, and to reevaluate how the agents of saying the law will do so with a view to effecting justice, considering the constitutional principles and norms to which the Brazilian legal system submits itself. It should be noted that the research methodology used was the bibliographical review, the search for positioning and more accepted criteria in doctrines, jurisprudence and more relevant scientific works on the subject.