A inconstitucionalidade do cálculo indenizatório por danos morais da reforma trabalhista à luz do princípio da isonomia.

Abstract

The advancement of laws, the use of strength with the purpose of solving conflicts were over the years being replaced by the intervention of a third party, concentrated on the figure of a judge. The impartial judge, under a jurisdiction, must say the law to the part, seeking out consequently to avoid misunderstanding that does not fit the democracy’s proposition based on civility. In the field of labor law, whose greatest evolution occurred in the twentieth century with the creation of a specialized judiciary able of solve contentions. The requests grow year by year with the perspective of protecting labor relations. One could not fail to notice the image of moral harm that is increasingly present, propitiating compensation to those who have been proven to have suffered some of their personality rights, such as honor, image, mental and physical health. Therefore, another problem arises: quantifying what must be delivered under the pretext of indemnity. The judges and labor tribunals did not have objective standard for this verification, appealing to subjective convictions and elements. With the increase of the employment reform in 2017, a parameter was applied to concrete cases: depending on the nature moral injury (from mild to so serious), the amount could be increased based on the last victim contractual wage. However, the issue has not been exhausted, leaving to the doubt if the procedure would confront the fixed into the Federal Constitution, according to what rules the isonomy principle. The present research can be value greatest for the working-out of a very current and relevant, since the indemnification is not only shown as a measure of justice, transforming the perceived amount at the end of the process. In this way, an original conclusion can be reached through a thorough historical and comparative study, analyzing the concepts and phenomena, to find the necessary coalition, supported by an overview of the legal order. As for the procedure, it will use bibliographical and documentary inquiry, with a detailed analysis of books, judge-made law and legislation about the theme. Following up, it aims to clarify the institutes discussed and the pertinent question of the unconstitutionality moral harm reckoning in labor relations, about of the isonomy principle, from Law 13.467/17.