Loss of Chance in Labor Relations: a Civil Liability Perspective

Objective: This article aims to analyze the applicability of this theory in the context of labor relations. Theoretical Framework: The loss of chance is a theory of civil liability understood as the deprivation of an opportunity to obtain an advantage or avoid a loss, resulting from the conduct of a third party. We used the theoretical foundations of Civil Law, based on authors such as Maria Helena Diniz, Gustavo Tepedino and Flávio Tartuce to verify the relevance of the applicability of the loss of chance based on actions or omissions, even if superficially considered lawful, but which reveal abuse of rights by the employer. Method: The research follows the monographic procedure, with application of the deductive method and, in relation to the results, is classified as qualitative. According to the objectives, this research is classified as exploratory, aiming at the deepening of the content, based on a bibliographic survey on the subject, using books, magazines, newspapers and legislation. Results and Discussion: We conclude that the theory of loss of chance is particularly relevant in the labor field, considering the opportunities for professional advancement and economic benefits that may be affected. We analyzed decisions of the Regional Labor Courts to establish the criteria for configuring the loss of chance and quantifying compensation. Research Implications: We believe that this research can help identify situations of abuse of rights by the employer and the applicability of the thesis studied here, in addition to serving as a parameter for the Judiciary, without prejudice to the discretion in relation to each case, in view of a fairer and more individualized assessment of damages, taking into account the specific context of each worker and the circumstances surrounding the lost opportunity. Originality/Value: This study contributes to the literature on the theory of loss of opportunity, which is vast in the civil field, but still little explored in Labor Law. The research can help establish the criteria for configuring the loss of chance and quantifying compensation.