O tabelamento do dano moral trabalhista: a incompatibilidade material do art. 223-g, parágrafo 1º, da CLT com a Constituição Federal de 1988

Abstract

The inclusion in the Constitution of the Republic of 1988 of the right to reparation of moral damages indicated that injuries of this nature should be compensated in their entirety, without the ties of limiting ceilings. According to art. 5, V, the indemnity shall be proportional to the grievance; since it is not possible to limit the intensity of the offense, it is also not possible to limit the intensity of the compensation, otherwise it would create disproportionate reparation for the benefit of the offender. The balance in the injury-reparation balance is guided by the constitutional principle of proportionality, therefore the unevenness imposed by the reparatory limitation indirectly ends up stimulating the expansion of the harmful behavior. In this sense, there is no material incompatibility with the Constitution of the Republic promulgated in 1988 (Article 5, paragraphs V and X), the norm recorded in art. 223-G, paragraph 1, CLT that defines the compensation regime. This time, in creating the maximum compensation levels, according to the degree of offense, the labor reform, in relation to the device under analysis, suffers from the vice of unconstitutionality.