17/12/2020

By Hannah Priante and Israel Cruz

We have currently seen an increase in discussions within the labor court regarding compensation for the loss of an opportunity.

This issue gains greater repercussion when the issues of possible pre-contractual and post-contractual damages are analyzed together. For example, candidates for a certain job vacancy that is cancelled or an employee of a certain company who, upon resigning, is hired by another company, is surprised with a counter-offer to stay and a few months later is dismissed without just cause.

The theory of loss of opportunity comes from a doctrinal construction that was adopted by Brazilian civil law. Although labor legislation is silent regarding compensation for the loss of an opportunity, article 8 of the CLT allows for the subsidiary use of common law.

This theory is characterized by the loss of a real opportunity (more advantageous position or avoidable loss) that would most likely have occurred if the other party's conduct had not been carried out.

Therefore, it is worth clarifying that compensation for the loss of an opportunity is only compensable when there is real harm to the worker, that is, when the opportunity is real and concrete and the right of the other party is frustrated by a unilateral act.

Therefore, if there is a loss of opportunity due to actions or omissions by the employer or person proposing a vacancy, and workers no longer enjoy real opportunities for financial gains, these damages may be compensated for the damages suffered.

In a recent decision on the subject, the Regional Labor Court of the 4th Region ruled that a chain of gas stations should be ordered to pay compensation for moral damages to a candidate for a vacancy who had resigned from a previous job and was not accepted for the new job due to the failure to submit her criminal record certificate, which was not requested at the time of her interview.[1]

As a result of these situations, the need for clear rules for the establishment of selection processes is reinforced, as well as care with pre-contractual issues in order to allow the candidate for the vacancy to understand the objective elements that need to be fulfilled.

[1] TRT-4 – ROT: 00202659720195040332, Judgment Date: 05/07/2020, 4th Panel, available at: https://pje.trt4.jus.br/consultaprocessual/detalhe-processo/00202659720195040332, 12/01/2020 at 3:06 pm