Dano existencial e teletrabalho: correlações com o direito à desconexão

Abstract

Existential damage, which is, in short, a harmful change to the subject's life projects and social relationships, has had an impact on labor relations, given that the employer, by extrapolating the legal limits of overtime, commits an illicit act, generating damage to your employee, subject to off-balance sheet repair. Considering that the telework regime is not subject to working hours control, the employer, abusing its directive power, makes its employees remain online and available during periods that should be rest, thus confronting the fundamental right to disconnect from work. In this sense, the question is whether the employer can be held civilly liable, in the form of existential damage, as a result of nonobservance of the teleworker's right to disconnection. Thus, the objective of this research is to verify the possibility of applying existential damage in cases where the fundamental right to disconnection of the teleworker has been violated. Therefore, the deductive method is used, starting from the historical-social analysis of the world of work, passing through a qualitative jurisprudential research within the scope of the Superior Labor Court, through the searches for "existential damage", "overwork", "law disconnection” and “teleworking”, with a view to understanding the position of the judiciary in view of the social relevance of the themes. As a result, it is observed that telework induces an extension of the working day, leading to an intensification of work, in addition to creating an overlap between employment and private life; it is also verified that the TST has some resistance regarding the application of existential damage, fearing its trivialization. It is concluded that the directive power of the employer cannot affect the employee's existence as a human being, holder of personality rights, and that in order to ensure complete physical and mental well-being of all workers, it is necessary to find mechanisms to prevent their submission to exhaustive work regimes.