Novos caminhos para a tutela do tempo do trabalhador-empregado: possibilidade de aplicação analógica da teoria do desvio produtivo do consumidor na relação empregatícia

Abstract

The present work aims to investigate the possibility of extending the Theory of Productive Deviation of the Consumer to the field of Labor Law as a way to open new legal avenues for protecting the existential time of employees. This investigation is conducted through bibliographic and documentary research, highlighting the similarities between consumer and employment relationships, particularly the inequality between the parties involved. Considering the legal right to be protected, the study begins with a historical analysis of the doctrinal evolution that the field of Civil Liability has undergone over the years, especially regarding the constitutionalization of private law and the recognition of new non-pecuniary damages. It then presents the Theory of Productive Deviation of the Consumer, proposed by Attorney and Professor Marcos Dessaune, demonstrating its doctrinal and jurisprudential relevance today. According to the doctrine analyzed, the crucial point of the investigation is based on the concept of vulnerability, which justifies the legal protection of the consumer and characterizes consumer relationships, and is also present in employment relationships, a form of labor relations where there is a clear imbalance of power. After verifying whether the justification for consumer relations also applies to employment relations and highlighting the legal obligations or duties of the stronger party in the employment relationship, whose non-compliance can cause harm to the opposing party, it is concluded, based on the doctrinal understanding analyzed, that it is possible to apply the Consumer Theory by analogy in Labor Law to substantiate the reparability of non-pecuniary damage suffered by the employee. The employer, by causing various problems in the performance of activities under their direction, has the capacity and power to impose productive deviation on the employee, who is the more vulnerable party in the employment relationship.