O adicional de penosidade sob a óptica da Teoria Constitucional Contemporânea: a efetivação dos direitos fundamentais

Abstract

Considering Contemporary Constitutional Theory of the applicability of constitutional standards, this article analyzes the effectiveness of the standard which regulates additional compensation for hardship as a fundamental right of workers. Inserted in classical constitutional theory and the applicability of constitutional norms in program standards, labor law which is analyzed here was not regulated by the Legislature, causing substantial damage to workers who exercise their activities subject to severe deterioration in their mental health. Faced with this legislative omission , the approach of the judiciary is of the utmost importance, in the sense of making the right to health of the worker, having in mind the principle of protection and do not allow, in the post-positivism , the negation of the normative legal principles. It is concluded that the solution of a case which involves meeting the principles and tasks extremely difficult, but necessary for the execution of justice, in accordance with the paradigm of the Democratic State of Law, led for realizing rights fundamentals, does not admit that the inertia of the Legislature is as an obstacle to the enforcement of such rights.