A inconstitucionalidade do tabelamento do dano extrapatrimonial na justiça do trabalho: análise das adis 5870, 6069 e 6082

Abstract

The Law 13.467/2017 - labor reform -, established the tabulation of extrapatrimonial damage through limiting parameters to be observed by the labor magistrate in fixing the quantum debeatur. The constitutionality of this novelty was challenged before the Federal Supreme Court in Direct Unconstitutionality Actions nº 6870, 6069 and 6082. Thus, the need arises to analyze the matter in accordance with the legislation and the legal theses raised in the Supreme Court, which is, therefore, the object of this article. The present work will take a conceptual and doctrinal approach to civil liability, its elements and application to labor relations, as well as examining the tabulation of extra patrimonial damage promoted by the labor reform. An analysis will also be made of the unconstitutionality of the tabulation of extra patrimonial damage and of the main theses raised in the aforementioned ADIs. Throughout this study, research was carried out in articles, doctrine, and jurisprudence, gathering the position of the main authors who study the theme. Finally, the indispensability of the extrapatrimonial damage was observed in order to give the worker its consolidation as a right. However, the labor reform presented itself as a great social regression by reducing bureaucracy and making labor relations more flexible, whereas the tabulation of the extra patrimonial damage was considered a harmful alteration to the worker. Therefore, the ADIs proposed before the STF may bring the adequacy between the quantum debeatur due under the labor relationship.