Brumadinho: An Analysis Of Potential Indemnities Under The Labor Perspective

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.

Future earning is the damage caused by the interruption of an economically profitable activity, necessary for the maintenance of a family. It is, in essence, an indemnity for what the injured party fails to win, as a result of guilt, omission, negligence, fraud or malpractice of a third party.In the case under analysis, the future earning shall result, at least, in the payment of an indemnity calculated on the basis of the average life expectancy of the Brazilian citizen, according to the Brazilian Institute of Geography and Statistics (IBGE), that is, by multiplying the employee's annual remuneration for the number of years he/she failed to work. Prospective damages are characterized by immediate and measurable material damage suffered by the victim and/or his/her family, consubstantiated by hospital expenses, medical fees, health care, funeral, removal of the body, etc. 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...