Worker's right to salary when prevented from working without fault for reasons inherent to their person

Facts

X. Sàrl, a company specialized in the manufacture, trade and distribution of raw materials in the textile industry, hired [A.] as a commercial agent starting from March 3, 2003 under an open-ended employment contract. The contract provided for a one-month probationary period, but did not regulate the notice period.

[A.] was completely incapable of working due to an accident from April 7, 2003, and then due to illness until June 1, 2003. On May 7, 2003, X. Sàrl terminated A.'s employment contract effective June 30, 2003. X. Sàrl informed [A.] in May 2003 that it had not taken out insurance covering loss of earnings in case of illness.

[A.] filed an action against X. Sàrl before the Labor Court of Geneva, claiming payment of her salaries for May and June 2003, as well as compensation for untaken vacation. The Labor Court awarded [A.] the amounts claimed. X. Sàrl appealed against this decision.

Considerations

The Federal Court considered that, according to Art. 324a CO, the worker's right to salary when prevented from working without fault for reasons inherent to their person is subject to a minimum duration of the employment relationship. When the contract was concluded for an indefinite period with a notice period of three months or less, the worker is not entitled to salary during the first three months of employment in the event of incapacity to work.

However, the parties could derogate from this basic regime by a written agreement, which…