Implementation by the employee except for defaulting.
The refusal by an employee to resume work can be legitimized by a breach by the employer to its obligations.
what extent an employee can refuse to perform his or her work?
The Social Chamber considers that such refusal may be legitimized by a breach by the employer to its obligations.
The Supreme Court authorizes the employee to provide to perform the obligations which it is responsible under the contract of employment when the employer fails to fulfill its own obligations.
A priori, this solution is not surprising.
This is indeed the implementation of the exceptio non adimpleti contractus.
The employment contract is a bilateral contract where the obligations of providing a supply of work and payment of wages are reciprocal and interdependent, which in case of defective performance or non performance of pure and simple One of these obligations, the creditor offers the possibility to oppose to the other contracting party other than default.
When it is an individual, it is recognized the possibility to invoke the exception of default, that is to say to stop work when the employer does not pay on time, in part or in full compensation due. But, faced with breaches of the employer, the employee most often decide to go to court in order to decide the legal termination of the employment contract or take note of the termination of that contract.
When several employees acting collectively, they can organize a strike in response to the failure by the employer's obligations: their action is grounded in other than default.
However, the Court does not specify whether the failure of the employer must take a certain gravity to be implemented, similar to what is required for legal termination, for taking note of the failure or movement to strike. It would also be consistent so serious that the game does not condition the plea of failure. This measure is indeed threatening, but it necessarily has the effect, not to break the contract, but to suspend the execution. Do not jeopardize the existence of the contract or business activity, it would be logical to mitigate conditions. However, good faith would require instead that the exception non-performance is not a replica of proportion to any breach of contract.
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