The 3rd Panel of the Superior Labor Court did not admit a company’s appeal against the decision that ordered it to pay compensation for moral damages to the four children of an employee in the Covid-19 risk group, who worked as a street sweeper and collector of trash. She died from the virus a month after returning to work, still during the epidemic.
Woman was responsible for sweeping outside of company
In the action in which they sought compensation for their mother’s death, which occurred on March 25, 2021, the children claimed that the company knew that the worker was part of the risk group as she had hypertension, diabetes and obesity. Employed since 2008, at the beginning of the epidemic she was removed from her in-person activities for 11 months, due to comorbidities.
According to the children, the company is responsible for the employee’s death because, in addition to the activities she carried out involving a greater risk of contamination than for other people in society, the employer directly contributed to her death, as it called her to work exposed to the virus, in direct contact with garbage, spending a week without adequate protective equipment, such as a mask.
The court of the 2nd Labor Court of Itabira (MG) granted part of the requests for moral damages, establishing compensation of R$50 thousand for each child. After appeals from the company and the children, the Regional Labor Court of the 3rd Region (MG) maintained the compensation for moral damages to the children and added moral compensation of R$20,000 for the suffering of the worker herself.
No justification
According to the TRT, there was no justification for summoning the employee, as she was kept at home even seven months after the publication of a national standard that would have allowed her to return to work. In this sense, Joint Ordinance 20, from the Ministry of Health and the Special Secretariat for Social Security and Labor, invoked by the company, allowed the return to in-person work of employees in a risk group whose activity was not possible through teleworking, but established criteria and conditions that authorized this return.
The TRT highlighted that, according to the employer’s internal regulations, the employee’s return, under these conditions, depended, among other requirements, on an express declaration from the immediate supervisor attesting to the need for the worker’s physical presence, which did not occur.
The regional court noted that, although the worker returned to work on February 2, 2021, the delivery receipts for personal protective equipment presented by the company reveal that the delivery of the first (two) protective masks to the employee occurred only on the day 11. The third mask, made of fabric, only a month later. Furthermore, all inspection reports attached to the file refer to periods after the employee’s death.
The company tried to re-discuss the case in the TST, maintaining that it did not contribute to the employee’s death, as it acted in accordance with current health ordinances and standards, also developing internal standards aimed at resuming activities. The defendant argued that it performs an essential activity and needed to resume its activities “due to the subsistence of the company itself and maintenance of the jobs of its employees”. She added that the requirements to characterize her civil liability were not met and highlighted that the deceased employee’s activity was sweeping and collecting garbage, carried out in the open, which would not have contributed to her contamination.
Importance of protection
The rapporteur of the interlocutory appeal in the 3rd Panel of the TST, minister José Roberto Pimenta, pointed out that, in a 2023 report, the International Labor Organization found that, during the Covid-19 epidemic, “essential workers, in In general, they suffered higher mortality rates than male and female workers in non-essential services, including the case of the deceased employee, who performed an essential service”. According to the minister, this shows “the importance of protecting health and safety at work”.
He highlighted the TRT’s conclusion that the causal link between the work and the death of the former employee was characterized in this case, given the situation found in the records, which reinforced the probability of the allegations made by the worker’s children. And it also considered that there was no doubt as to the company’s guilt in relation to the damage caused to the employee’s children, since, “in addition to the failure to comply with occupational health and safety standards”, the employer “did not prove that it had taken measures to avoid contamination of the deceased.”
In the rapporteur’s assessment, given the conclusion of the regional ruling, to reach a different understanding it would be necessary to re-examine the assessment of the factual and evidentiary set made by the ordinary spheres, a procedure prohibited to the TST. Likewise, the lack of specificity in the paradigms presented by the company to appeal does not allow the interlocutory appeal to be granted.
Furthermore, no official source or authorized repository was indicated to prove the jurisprudential divergence, as the website indicated cannot be considered as an authorized repository, as, when clicking on its link, there is redirection to a restricted page, which requires a login and password, It is not possible to consult the veracity of the judgment through the indicated source. Unanimously, the board dismissed the company’s appeal. With information from the TST press office.
Click here to read the decision
AIRR 10343-52.2022.5.03.0171
