Factum principis e sua aplicabilidade no direito trabalhista: análise da possibilidade de enquadramento do instituto jurídico nas dispensas sem justa causa oriundas do lockdown.

Abstract

The present study has as its object the analysis of how business companies used the institute of the factum principis, originating from Administrative Law, as a way of seeking support and the responsibility of the State for the payment of a portion of the severance payments resulting from the dismissals that carried out during the COVID-19 Pandemic, due to the cessation of business activity or closure of the commercial establishment by Government determination. Thus, it will be specified how the national legislation attributed to certain federative entities the responsibility for the payment of severance payments that have an indemnification nature and that result from the unmotivated contractual termination, that is, the one to which the employee did not give cause and that, in most cases, stems from the exercise of the employer's directive power. It will be explained, in this context, that this liability will only be configured in the cases in which the waiver comes from an act arising from the public administration as a privileged party in the existing contractual relationship, when exercising this discretionary act. Furthermore, this work also intends to analyze the divergent opinions about this possibility of framing, given the dual positions of scholars and specialists, since a fraction of the currents believe that, in cases where a certain establishment closes its activities as a result of decrees that established the lockdown and other health measures for the purpose of containing the spread of the Coronavirus, the fact that he is a prince remains present, while the other believes that the conduct adopted by the State is intended solely to protect citizens and protect the fundamental right to health. , with no benefit to the entity in this attitude, which would rule out, therefore, the occurrence of the factum principis. Thus, throughout the research, a compilation of studies on the subject will be appreciated and, mainly, the jurisprudence enunciated in the last two years will be analyzed, since this discussion, although very recent, has had a strong repercussion in the national courts, causing the filing of numerous lawsuits in the Labor Court where the State is held accountable for the payment of the sums resulting from the contractual termination. Keywords: Factum Principis; Responsability; Public Administration; Covid-19