Considerations at the time of COVID-19: does the current emergency integrate the hypothesis of force majeure for the suspension of remuneration? Does the current COVID-19 spread pandemic situation integrate the hypothesis of force majeure?
In the light of the above questions, it has been deemed appropriate to make some brief reflections on the impact that this event may have on employment relations, evaluating whether the particular contingency may or may not exonerate the operator unable to fulfil the contract – in this case, the employer who suspends the payment of the salary – to invoke force majeure.
The onerous and synallagmatic nature of the employment relationship
As is well known, in Article 2094 of the Italian Civil Code the legislator describes an employee as “a person who is obliged by remuneration to work in the company, performing his or her intellectual or manual work under the direction and dependence of the entrepreneur”.
For the purposes of our interest, the analysis of the above rule shows that in the context of an employment relationship:
– the worker or employee is obliged to carry out a specific work activity, and
– the employer is obliged to pay a salary.
– We add that the employment relationship is, among other things, characterized by:
– the payment of wages to the worker as one of its essential elements;
– synallagmatic performance, in the sense of performance in return for remuneration.
The relationship between employer and employee can also be read from the point of view of debt and credit position.
From this point of view, the employee is bound to an obligation to do, i.e. the locatio operarum, traditionally understood as an obligation of means (one’s own working energies), the employer is bound to pay him/her the salary.
Read the full version of the article in Italian here.
Source: Guida al lavoro – Il Sole 24 ore.
