Facts
The dispute opposes the singer Elena Prokina to the Foundation of the Grand Théâtre de Genève. Prokina was engaged by contract to play the role of Nedda in the opera "I Pagliacci" by Ruggero Leoncavallo. However, when she arrived in Geneva for the rehearsals, she was 25 weeks pregnant, i.e. 8 months at the time of the scheduled performances. The director refused to let her play this role, as it involved scenes of physical violence that would have endangered the health of Prokina and her child.
Prokina then sued the Grand Théâtre, claiming payment of her salary and travel expenses, as well as compensation for unfair dismissal. The cantonal courts partially granted her claims, ordering the Grand Théâtre to pay her certain sums.
The Grand Théâtre appealed this decision to the Federal Tribunal.
Considerations
The Federal Tribunal dismisses Prokina's main appeal and partially admits the joint appeal of the Grand Théâtre.
It considers that the contract concluded between the parties must be qualified as an individual employment contract. Prokina was prevented, without her fault, from providing the promised work due to her advanced pregnancy, which results in her release from the contract under Art. 119 para. 1 CO.
However, Arts. 324a and 324b CO specifically govern the issue of risk in the event of an employment contract. According to Art. 324a para. 1 CO, the right to salary only exists if the employment…