Colisão de direitos fundamentais no limbo jurídico previdenciário trabalhista: uma análise das micro e pequenas empresas

Abstract

This legal dissertatation investigates the potential collision of fundamental rights in the following scenario: mandatory reintegration (or monetary compensation) of an employee who´s been considered fit for work by the Social Security Administration but, at the same time, unfit by the employer. Once the collision is identified, this dissertation examines how micro and small enterprises should be legally addressed on the matter above. From a dialectical approach and by providing argumentative parameters, this research intends to assist Courts on solving cases regarding employees of micro and small enterprises which are inserted in this social security legislation loophole. In the first part of this dissertation, the object is to analyze the Social Security Administration and its relation with the principles of health and the worker protection. Hereu pon, in the search for the origin of the above-mentioned loophole, we investigate the medical divergence of opinions between the employer’s inhouse physician and the Social Security Administration physician. After that, from the perspective of the horizontal effectiveness of fundamental rights, this study discusses the socioenvironmental liability of micro and small enterprises in the described scenario. Finally, we explore in which ways the Brazilian Constitution grants such enterprises a differentiated legal framework and use Robert Alexy’s weight of principles theory to build what, for us, is the best solution for the collision of fundamental rights presented above, which can be achieved by linking the micro and small enterprises’ economic size to the damages paid to the employee.