Salary Deduction Due to Rain?
14 December 2010
Read by 3798 persons
Because of the heavy rains on November 29 and 30, many people were unable to go to work on Tuesday the 30th, either because they had no transportation or to avoid risks. Is this absence considered unjustified and therefore tantamount to serious misconduct? Should the company deduct a day's pay from the absentees?
In fact, these people did not willingly abandon their duty to go to work, but they were certainly unable to return to their workplace, or even unable to request prior authorization for absence because of the torrential rains, which is considered force majeure. Just refer to Article 269 of the DOC to be convinced.
Indeed, Article 269 of the DOC defines force majeure as "any event that man cannot prevent, such as natural phenomena (floods, droughts, storms, fires, locusts), enemy invasion, acts of God, and which makes the execution of the obligation impossible.
A cause that could have been avoided is not considered force majeure, unless the debtor (here the employee) cannot justify that he exercised all due diligence to prevent it."
Nor is a cause considered force majeure if it was caused by a prior fault of the debtor.
Clearly, all the characteristics of force majeure are met. Therefore, this absence cannot in any way constitute an unjustified absence, tantamount to serious misconduct, because it is justified, and was sufficient in itself to prevent employees, or some of them, from returning to work, due to roadblocks, unavailability of transport, or even flooding of homes by rainwater.
In this case, the employer cannot sanction employees who are late or absent due to bad weather, and proceed with their dismissal, as it would be an abusive dismissal.
As for the payment of salary for this type of absence, unfortunately, the labor code has not provided a clear and categorical answer, so it is up to the parties to find an equitable solution taking into account the particular circumstances, because once acquired, "force majeure" is not without consequences: the employee is certainly no longer required to provide his work, but the employer is no longer required to remunerate him either. That's the principle.
Nevertheless, Article 54 of this code in its last paragraph (4) equates these absences with days of actual work. "The following are considered periods of actual work: periods where the execution of the employment contract is suspended, in particular due to authorized absence, illness not resulting from an industrial accident or occupational disease, temporary closure of the company by administrative decision or in cases of force majeure."
In short, except for more favorable collective agreements, the employer is not required to remunerate the hours of absence of employees, except when they are due to or caused by work, in particular an industrial accident.
In practice, to avoid a salary deduction, the employer may propose to deduct this absence from paid leave, or to recover overtime in agreement with the employees concerned..
lavieeco.com
In fact, these people did not willingly abandon their duty to go to work, but they were certainly unable to return to their workplace, or even unable to request prior authorization for absence because of the torrential rains, which is considered force majeure. Just refer to Article 269 of the DOC to be convinced.
Indeed, Article 269 of the DOC defines force majeure as "any event that man cannot prevent, such as natural phenomena (floods, droughts, storms, fires, locusts), enemy invasion, acts of God, and which makes the execution of the obligation impossible.
A cause that could have been avoided is not considered force majeure, unless the debtor (here the employee) cannot justify that he exercised all due diligence to prevent it."
Nor is a cause considered force majeure if it was caused by a prior fault of the debtor.
Clearly, all the characteristics of force majeure are met. Therefore, this absence cannot in any way constitute an unjustified absence, tantamount to serious misconduct, because it is justified, and was sufficient in itself to prevent employees, or some of them, from returning to work, due to roadblocks, unavailability of transport, or even flooding of homes by rainwater.
In this case, the employer cannot sanction employees who are late or absent due to bad weather, and proceed with their dismissal, as it would be an abusive dismissal.
As for the payment of salary for this type of absence, unfortunately, the labor code has not provided a clear and categorical answer, so it is up to the parties to find an equitable solution taking into account the particular circumstances, because once acquired, "force majeure" is not without consequences: the employee is certainly no longer required to provide his work, but the employer is no longer required to remunerate him either. That's the principle.
Nevertheless, Article 54 of this code in its last paragraph (4) equates these absences with days of actual work. "The following are considered periods of actual work: periods where the execution of the employment contract is suspended, in particular due to authorized absence, illness not resulting from an industrial accident or occupational disease, temporary closure of the company by administrative decision or in cases of force majeure."
In short, except for more favorable collective agreements, the employer is not required to remunerate the hours of absence of employees, except when they are due to or caused by work, in particular an industrial accident.
In practice, to avoid a salary deduction, the employer may propose to deduct this absence from paid leave, or to recover overtime in agreement with the employees concerned..
lavieeco.com
