In its judgement of 14 September 2015 the Cour de Cassation pronounces itself on the scope of the obligation for the employer to provide work to those employees willing to work in he context of a strike.
The Cour de Cassation states that the employer needs to provide proof that the strike is an element of force majeur which prevents him to respect his obligations. The employer must therefore be in the impossibility to provide the contracted work in order to deter legally those who are eager to work.
The facts are as follows.
1.
An employer prevents non-striking employees to execute their work due to an ongoing strike inside the premises. Since there are no performances delivered, the employees are not paid any salary for those days.
Some of the employees file a court request claiming compensation for unpaid wages. Their action is based on the contracted obligation for the employer to enable the staff to deliver their work in the manner, time and location as agreed on.
Throughout the hearings, the employer admits that the employees were still able to execute a range of their tasks. Hence the Court’s conclusion that the execution of job duties was not entirely or totally impossible, but rather more difficult.
Therefore, the Labour Court of Appeal (Antwerp) requires the employer to pay the work willing employees a compensation.
The employer appeals the decision before the Cour de Cassation.
2.
The Cour de Cassation recalls that the employer who wants to release himself of the duty to provide work to those employees willing to work, needs to provide the evidence that the strike was a case of force majeure which disabled him to respect his employer’s duties. He needs to deliver proof that he could not respect his obligations.
The impossibilty is weighed upon the “contractual tasks” of the employee, meaning the normal assignments of the employee. If, like in this specific case, there is still a margin to execute other tasks, the employer is obliged to employ the staff.
The Cour de Cassation herewith recognised the Judgment of the Labour Court of Appeal (Antwerp).
What can be learned from this Decision ?
Employees who intend to take up paid employment but cannot proceed, due to specific circumstances, cannot claim payment in principle. The employer is however obliged to occupy his employees in the manner, time and location as agreed on.
Only when force majeur occurs, the employer is released from this contractual obligation. If a strike renders the tasks of those employees willing to work only more difficult, the employer cannot prevent them of executing them. In the latter context, the employer risks to be asked to provide compensation payment equalling the salary the workers would have earned under normal circumstances.
