Existential Damage: The Specificity of the Institute Unveiled from the Violation To The Right Of Labor Disconnection

Abstract

The right of labor disconnection underlies on a constitutional and fundamental prerogative of the entire working class. Rest periods from the laboring environment are protected by law and have the objective to provide workers with recovery of their physical and mental energies. They also assure moments of delight, of family, communitarian and political insertion, for the fulfillment of personal plans. The violation of these disconnection periods can jeopardize projects or life habits, as well as social relations, resulting in existential damage. From these premises, this article aims to analyze the characterizing elements of existential damage in order to evince its peculiarities in relation to moral damage and to defend the accumulation of damages to provide just atonement to the victims and to their dignity as human beings. Thus, this research supports itself on legal dogmatic principles, since it considers that the internal elements of legal order are sufficient to establish a distinction between moral and existential injuries. The main problem relies on the typifying elements of existential damage. Due to their extra-patrimonial nature and relationship to personal rights, they are mistakenly considered by labor courts as moral damages, and, therefore, given limited possibilities of indemnification to the victim. Under this perspective, the contextual complexity above presented is overcome through deductive reasoning, as it indicates in the open norms of the national legal system the possibility of an interdisciplinary and comparative investigation which attests the specificities of moral and existential damages.

Keywords

• Dano existencial, Direito de desconexão, Especificidade do dano existencial, Acumulação dos danos