Off-balance sheet damage and labor reform

05/22/2018


The labor reform represents progress in the national legal system by giving greater legal certainty to labor relations and adjusting regulation to the productive reality that underlies it. This does not mean, however, that the aforementioned document is immune to criticism in certain points, one of which deserves special attention because it touches on a subject closely related to the worker's personality rights: off-balance-sheet damage.

Article 223-B of the Consolidation of Labor Laws states that off-balance damages consist of the effect produced by "action or omission that offends the moral or existential sphere of the individual or legal person." Thus, situations such as moral damage and aesthetic damage should be governed by the aforementioned topic in labor legislation.

The regulation of situations that cause harmful consequences beyond the material field is relevant, since it recognizes the value of aspects fundamentally linked to the dignity of the human person in the case of the worker or to the reputation of the legal entity that exploits economic activity and creates wealth for society. In this sense, the pain inflicted and the embarrassment caused to others (moral damage, which can be suffered by natural or juridical person), as well as the offense to the physical harmony of someone is punished (aesthetic damage, which can be borne by a natural person ). In such cases, the mere compensation of any material damage that may be experienced is not sufficient to compensate for the effects of a person's misconduct.

The disturbing element in the attempt to standardize the off-balance damages meets the parameters established for the calculation of indemnification. As defined in article 223-G, paragraph 1, the criteria are as follows, and the last contractual salary of the victim is always considered as the basis of calculation: in case of a slight offense, the triple of said reference is paid; in the case of an average offense, it shall be paid up to five times; if the offense is considered serious, the amount in question is multiplied by up to twenty times; lastly, the extremely serious offense causes the payment of up to fifty times the amount that serves as the basis. In the case of a recidivism involving the same parties, the indemnity may be paid in double amount in accordance with the judicial limits (article 223-G, paragraph 3).

The establishment of charges for the payment of compensation for the victim who sustains off-balance damage, although it is recommended from the point of view of legal security, is very questionable in what concerns the search for effective justice. This observation stems from the fact that the ceilings are linked to the contractual salary of the employee, an element that generally portrays the degree of formation of the worker. In this sense, from the financial point of view, the same type of offense caused to a cleaner and a manager, for example, will lead to a payment of indemnity greater than the second one, and, as a rule, simpler functions that are subject to the worst offenses in the workplace, given its obvious vulnerability due to, among other factors, the possible low level of employability caused by the lack of professional training.

It should also be noted that the employment relationship must be guided by the principle of good faith, which is provided for in article 422 of the Civil Code, a subsidiary source of labor law. Thus, whether in the previous period, during the execution or after the existence of the employment relationship, it is possible the occurrence of off-balance damages. At any time, therefore, employee and employer may suffer negative consequences due to the behavior of the other party. The occurrence of such offenses is frequent in the productive sphere, in which there is natural tension due to the opposition of interests between the policyholder and the service provider, and special attention should be given to social networks, a means of promoting the rapid dissemination of opinions that may eventually cause damage to the image of others.

The regulation of the off-balance-sheet damage in the labor field, in synthesis, although it is a commendable initiative in the attempt to give greater legal certainty to the treatment of the subject, can cause situations of extreme injustice when linking the indemnification to the last contractual salary of the victim. Ultimately, there can be a cruel logical inversion, punishing, with the payment of smaller amounts, the offense to those who need greater protection, for being socially and financially more vulnerable in the productive scope. It is a subject to be carefully considered and discussed, for the establishment of prior limits of indemnity to situations that refer to the dignity or reputation of a person can be extremely unfair.