Brumadinho’s disaster completed 50 days this week and one of the main discussions in vogue is with respect to the indemnities that shall be paid to the victims’ families or to the victims themselves, if they survived.
Because of this, the 5th Labor Court of the city of Betim (State of Minas Gerais) determined the blocking of BRL 1.6 billion to assure labor payments and indemnities.
However, so far, the parties did not reach an agreement on amounts to be paid.
Under the labor perspective, we understand that several damages are susceptible for indemnification, taking into account exclusively Vale’s employees.
On one hand, there are the patrimonial damages, characterized by some type of financial loss to the victims and/or their families.
Among such damages, we may quote: (i) future earning and (ii) prospective damages.
On the other hand, we have the non-pecuniary damages, that are, those that are monetarily immeasurable and affect the principles related to the dignity of the human person.
At this point, it is important to highlight the Labor Code, after the Reform that came into force in November/2017, brought a whole new Chapter to exclusively treat about this modality of damage.
It should also be noted that the law adopts the term “non-pecuniary damages” and not “moral damages”. The use of this expression is not unreasonable. The legislator intended to extend the comprehensiveness of the law for all and any damage that is not patrimonial. In summary, if the damage is not characterized as future earning or prospective damage (subtypes of patrimonial damages, as outlined above), article 223-E of the Labor Code shall be applicable, for all non-pecuniary damages identified.
At this point, we may affirm that the non-pecuniary damage is divided into the following subtypes: (a) moral damage; (b) aesthetic damage; (c) existential damage; and (d) social harm.
Another type of damage, arising from doctrinal and jurisprudential construction and based on comparative law (since the origin of this theory occurred in France) is the loss of a chance¹, which is the frustration of an opportunity for equity gain or reduction of an advantage, by an unlawful act of a third party.
This theory constitutes a situation in which the practice of an unlawful act or the abuse of a right makes it impossible to obtain something that was expected by the victim, either a positive result or the non-occurrence of a loss, causing damage to be repaired.
Thus, when an unlawful act is provoked, it is notable that this act unexpectedly interrupts the modus vivendi of the victim, frustrates him/her an opportunity to obtain a benefit, in which case the indemnity is due to the lost opportunity and not to the expected final advantage.
In conclusion, it is a fact that the labor reform brought parameters for the calculation of the compensation resulting from damages in the non-pecuniary sphere, which did not exist previously (the arbitration was in charge of the judge). However, it is not correct to affirm that each victim and/or family will receive only 50 time the employee’s wage as indemnity, since, for each subtype of non-pecuniary damage duly proven, a corresponding amount of compensation should be levied.
Another point of attention in relation to this question concerns the controversy that hangs over the modality of termination of the employment agreements of the deceased employees.
In theory, in the event of the employee’s death, the employment agreement automatically terminates, with the consequent payment of the severance pay equivalent to the request for dismissal (salary balance, 13th salary, proportional vacation + 1/3, family salary, expired leave + 1/3 for employees with more than one year of contract).
In addition to the sums listed above, the family is authorized to withdraw the balance of the linked account of the FGTS.
However, we understand that, for the case under analysis, it would be possible to support the existence of a “just cause” of the employer, which gave rise to the death of the employee, being the termination faced as a termination for cause by the employer, being owed, in addition to the sums listed above, the payment of notice and the FGTS fine.
Finally, it is also necessary to analyze how the situation of the surviving employees will remain, since the workplace has been completely destroyed and there is no prospect of reconstruction in the near future.
In these cases, we envisage two scenarios: (1) the termination of employment agreements which, in our opinion, must occur through termination for cause of the employer; or (2) the transfer of employees to other establishments of the company, which may occur without the consent of the employee, as it is one of the exceptional cases (extinction of the establishment where the employee worked).
In addition, we believe that it is possible to claim the Theory of the Sovereign Act (factum principis) to sustain that the employer, through its guilty conduct, caused an imbalance in the contractual relationship, preventing the fulfillment of obligations by the employees, being responsible for paying the salaries, to the surviving employees, until one of the above scenarios is implemented.
From a labor perspective, we understand that these are the most relevant questions arising from the Brumadinho’s disaster. As discussed above, these are controversial issues and have not yet been pacified by our legal system and will soon have several new developments.
¹ It is important to emphasize that the jurisprudence has not yet established an understanding about the classification of the indemnification by the loss of a chance, granting them sometimes as a non-pecuniary damage, sometimes as a patrimonial damage, which is why we chose to highlight it independently.