Duty to provide labour

Definition

The duty to provide the labour represents the duty of an employee to render labour in the services of an employer. An employee is to provide the labour personally, unless otherwise agreed (comp. Art. 321 of the ‘CoO’).

Working hours

The working hours represent the extent of the labour due to be provided, i.e. the labour claim of an employer on an employee per day. In regard to the composition of the working hours, there are several possibilities, e.g. part time work, job sharing, etc.. The regulations concerning the maximum working hours per week are also to be observed as well as day work, night work and work on sundays.

Extra hours

Extra hours mean extra hours of labour rendered in excess of the normal working hours.

Duty to work extra hours

Under Art. 321c, Para. 1 of the ‘CoO’, an employee can be under a duty to work extra hours when the following prerequisites obtain:

  • extra hours become necessary;
  • an employee must be capable of working extra hours (physically and psychically);
  • extra hours of work should be capable of a reasonable- and good faith expectation of an employee.

Remuneration for extra hours

A claim to remuneration arises, when:

  • the extra hours are required by an employer, or
  • when not required by an employer, but deemed necessary.

Extra hours can be remunerated as follows:

  • employers as a rule are to pay remuneration for extra hours, calculated on the normal or contractual remuneration plus a surcharge of at least one quarter (comp. Art. 321c, Para. 3 of the ‘CoO’);
  • with the agreement of an employee, extra hours can be remunerated by time off work of at least the same duration (comp. Art. 321c, Para. 2 of the ‘CoO’).

Differentiation to overtime

Overtime is defined as labour rendered in excess of the maximum weekly working hours (essentially 45 hours per week). As with extra hours, overtime can be remunerated by time off work.

Infringement of the duty to provide labour

Duty of taking due care

An employee is to carry out his of her assignments personally and also to take due care in their compliance, pursuant to Art. 321a, Para. 2 of the ‘CoO’. The extent of the due care to be taken is decided under Art. 321e, Para. 2 of the ‘CoO’.

Sanctions

An employee, who fails to carry out his or her work assignments, or fails to take the necessary due care, can expect the following sanctions:

  • notice of termination of a contract of employment (without time period of notice, only in extreme cases of insufficient performance);
  • refusal to pay the remuneration or to pay a reduced remuneration;
  • indemnities for loss or damage under the preconditions of Art. 321e of the ‘CoO’ (premeditated- or negligent causation of loss or damage).
  • possibly agreed contractual penalties.

The liability of an employee

An employee is liable for any loss or damage caused to an employer premeditatedly or negligently. An employee must however be culpable to the particular extent assessable under Art. 321e, Para 2 of the ‘CoO’ (liabilities are determined in consideration of the work risk, the degree of training or the technical skills involved). The onus of proof is on an employer. The co-culpability of an employer can lead to a reduction of the liability. The same regulations in connection with liabilities also exist in cases of:

  • loss of- or damage to the motor vehicles of an employer, and the
  • shortfall liability, i.e. liability for petty cash (mostly in the catering- and retail trades).