Coronavírus e os decretos do Governo do RN para combater a pandemia: um estudo acerca da (im)possibilidade da aplicação do factum principis nas rescisões de contratos de trabalho em decorrência das restrições impostas pelo estado ao funcionamento das empresas

Abstract

This work proposed itself to study the legal institute factum principis (CLT’s article 486), more precisely concerning the possibility of its (in)application in the cases of dismissals promoted by companies/employers which had their operation forbidden via Decrees edited by the RN State’s Government to the fight against COVID-19’s pandemic. For reasons of methodologic practicality, the Decrees objects of the study were those edited by RN’s Government since the pandemic’s beginning in the state, in March until the last month of April, in 2020. The question that moved the work was: “Is the factum principis applicable to the dismissals promoted by companies which had their operation affected owing to RN’s Government Decrees during COVID-19’s pandemic?”. The raised hypothesis was that the factum principis is not applicable on that occasion, considering the Government Act, which has given itself in public health’s defense and includes all the society, not possessing a minimum of discretion, but a necessity nature. This study used the Hypothetico-deductive research method, through a qualitative approach and the realization of a bibliographic, legislative, and jurisprudential survey, intending to materialize an exploratory and at the same time, explanatory research. Thereby, given the presented context, it was concluded that the Decreets emanated by RN’s Government which determined restrictions and/or prohibitions to the operation of certain companies/employers and occasioned crises to them, and therefore, dismissals of employees, do not constitute factum principis, since such governmental Acts do not possess a discretionary feature - that element, jurisprudentially, indispensable to the application of the institute in a study to the concrete case -, the Government having only acted in accordance with its legal obligation of protecting the collectivity and the public health, opportunity which all severance payments, including indemnities, pertinent to the employees’s dismissals occurred in that context must be in charge of the employers, not of the RN’s state, an understanding already consolidated, and which, in the course of the present work, remain determined expressly through the article 29 of the Federal Law nº 14.020/2020, so there is no more doubts about the institute’s inapplicability in these cases, confirming the initially raised hypothesis.