In a virtual plenary session, the Federal Supreme Court justices decided, by 8 votes to 2, that compensation for non-pecuniary damage at work is not restricted to the amount established in the Consolidation of Labor Laws (CLT). This means that judges will only use the criteria defined by law as a parameter, allowing awards to be arbitrated at higher amounts.
Article 223-G of the CLT establishes the parameters for the arbitration of non-pecuniary damage awards, using as a criterion the classification of offenses as light (up to three times the last salary), medium (up to five times), serious (up to 20 times) or very serious (up to 50 times).
These provisions were the target of Direct Unconstitutionality Actions (ADIN) brought by Anamatra – the Association of Labor Justice Judges (ADIN 6,050), the Federal Council of the Brazilian Bar Association (OAB) (ADIN 6,069) and CNTI – the National Confederation of Industrial Workers (ADIN 6,082).
Recently, it was decided that it is constitutional to set the amount of compensation for non-pecuniary damage at work under the Consolidation of Labor Laws (CLT). However, the amounts established in the law should not be interpreted as a maximum limit, but only as a parameter for the reasoning behind the court decision, allowing the judge to order the payment of higher amounts, provided they are duly justified.
Therefore, when the court orders the payment of compensation for non-pecuniary damage, it is not restricted to the provisions of the law. The law serves as a guideline for the decision, but does not impose a limitation.
In view of the divergent court decisions in the country, the “Labor Reform” (Law 13,467/2017), in establishing these indicators and benchmarks, sought to ensure, as far as possible, fair treatment for employers and employees.
According to the case law of the Federal Supreme Court, it is unconstitutional to set prior and abstract amounts of compensation for non-pecuniary damage through a legislative model that completely removes the judge’s discretion, transforming him/her into a mere enforcer of pre-determined values that cannot be adapted to the specifics of the specific case (1).
However, this does not mean the prohibition of methods that help, based on objective criteria of interpretation, in the quantification of the damage, as long as they are capable of guiding the reasoned conviction of the judge.
Furthermore, in the absence of specific regulations in labor legislation, it is possible to use the Civil Code (Title IX) as a supplement to labor relations, as long as there is no contradiction with the regime provided for in the Consolidation of Labor Laws.
Based on this understanding, the Plenary Session, by a majority, in a joint judgment, partially upheld the actions to interpret them in accordance with the Constitution and establish that: (i) the wording given to articles 223-A and 223-B, both of the Consolidation of Labor Laws (2), does not exclude the right to compensation for indirect non-pecuniary damage or reflex damage in the context of labor relations, to be assessed in accordance with civil legislation; and (ii) the criteria for quantifying compensation for non-pecuniary damage provided for in article 223-G, caput and § 1, of the Consolidation of Labor Laws, must be observed by the judge as a guideline to support the court decision, and the judicial arbitration of the damage in amounts higher than the maximum limits established in items I to IV of § 1 of article 223-G is constitutional, taking into account the circumstances of the specific case and the principles of reasonableness, proportionality and equality (3).
People management must therefore be carried out with extra care, since claims for non-pecuniary damage can result in high costs for companies.