Facts
The dispute opposes F. AG, which operates the F. institute, to M., who was hired as a building caretaker with a gross monthly salary of 3'500 Swiss francs. The parties agreed to terminate the employment contract on 30 May 1991, but M. continued to work for F. AG after this date. The amount and contractual basis of this work are disputed.
M. brought a lawsuit to claim half of the unpaid salary for June 1991, as well as the salaries for July and August 1991, for a total of 8'750 Swiss francs gross. F. AG contested this claim, stating that M. had only worked a few days in June 1991 and had received half a salary for this period.
The labor court of Sargans joined the two proceedings and granted M.'s claims for an amount of 25'750 Swiss francs. The cantonal court of Saint-Gall modified this decision, awarding M. 20'485.90 Swiss francs net, as well as 5% interest on 8'189.20 Swiss francs from 1 August 1991.
Considerations
The Federal Court examined the question of whether the employee can refuse to work in case of delayed payment of their salary. The court considered that Article 82 of the Code of Obligations (CO) does not apply directly to employment contracts, but that the employee can invoke an exception of non-performance of the contract if the employer is late in paying their salary.
The court also examined the question of whether the employee who refuses to work in case of delayed payment of their salary can claim compensation for the damage suffered. The court considered that the employer who does not pay the employee's salary within the prescribed time limits must pay compensation for the damage suffered, even if the employee does not provide their work performance.
The court also examined the…