«How did they suspend the employee’s right to withhold his labor!”

«Supreme Court vs the employee’s right to withhold his labor!”

«The case law with regards to the employee’s right to withhold his labor is overturn!»

«Supreme Court suspends the right to withhold labor!»

The speculation

These are only some indicative titles of articles, which were published in popular news websites, with regards to the Greece’s Supreme Court’s Decision No 114/2017, which was published in open court in 19.01.2017. This Decision obtained severe publicity and the news led to the disappointment of the majority of the employees who jumped to the conclusion that the employee’s right to withhold his labor has – at the best case scenario – weakened. Given that Greece is suffering from extremely high unemployment rate, especially with regards to the youth population, the adoption of this view makes employees very hesitant to claim their legal rights. As a result, they decide not to take a stand against the employer’s trend to systematically withhold paying their wages for significant periods of time, due to the fear that their best «weapon», which is the right to withhold their labor, is «deactivated» and that this action will be considered as a resignation from their working position.

Are these worries, that affect so critically the employees’ stance, justified or are they a result of a shallow, perfunctory and, as a result, wrong interpretation of this Supreme Court’s Decision? Did the case law with regards to the employee’s right to withhold his labor actually overturn to the employee’s detriment?

Criteria and Circumstances

The answer is no. The employee’s right to withhold his labor when the employer is withholding paying his wages was never limitless and without conditions. Contrariwise, it was always subject to the restrictions which are established by the general provision of the Article 281 of the Greek Civil Code. According to this Article, every legal right, such as the employee’s right to withhold his labor, must be exercised within the boundaries of good faith and transactional ethics. Otherwise, the exercise of the legal right is abusive and, therefore, it does not lead to the sought result. In the particular case of the employees’ right to withhold labor, eventual abusive exercise of it leaves the Court of Law with no other option than to declare that the employee resigned from his working position. The legality of the right to withhold labor is always judged by the Court of Law with regards to the following circumstances (as stated for example in the Decisions 1248/2015, 1153/2009, 1510/2010 of the Greece’s Supreme Court).

• Significant time delay with regards to the payment of the employee’s wages.
• Employer’s liability with regards to the delay of the payment of the employee’s wages.
• The permanent or temporary nature of the employer’s financial difficulties.
• Eventual unbearable and/or disproportionate damage that is inflicted to the employer by the withhold of the labor.
• The credibility and reliability of the employer.
• The monetary amount of the employer’s debt to the employee.

The Court’s judge with regards to those matters is free of any binding rules and the special circumstances of each particular case must be taken into consideration.

Comparison with other Supreme Court’s Decisions

Those criteria were also taken into consideration in the notorious Decision No 114/2017 of the Greece’s Supreme Court, which presented no differences from the established case law of the domestic Civil Courts. If we trace back to the not so remote past, we will observe the Decision No 1153/2009 of the Greece’s Supreme Court, which, after taking into account the circumstances that were examined above, declared that the under judgement exercise of the legal right to withhold labor was abusive and, therefore, illegal.

The only essential difference between those two Decisions, the former of which did not gain much publicity in contrast to the latter, is that the latter takes into account, between many other criteria and circumstances, the financial crisis that our country is facing during this decade. The recession that plagues the domestic economy is a significant obstacle for the vast majority of businesses, but it would be not sufficient by any means to justify on its own the Court’s judgement that eventual exercise of the right to withhold labor is abusive. On the contrary, it must be noted that eventual failure to acknowledge the impact of the recession would also be contrarian to the existing Case Law, which states that eventual adverse circumstances with regards to the financial state of the employer are taken into consideration.

The fact that this notorious Supreme Court Decision does not indicate a Case Law overturn with regards to the right of the employee to withhold labor, is proven beyond doubt by Decisions No 1003/2017 and 1287/2017 of Greece’s Supreme Court. These Decisions were published after Decision 114/2017 and their judgement is also determined by the criteria that were examined above. In both these cases the Court ruled in favor of the employees and declared that the exercise of their right to withhold labor was legal.

Conclusion

Careful study of the Case Law demonstrates that there is no case of a de facto suspension or even a weakening of the employees right to withhold labor. This particular legal right is still enjoying the same protection as in the past and the employees who exercise it in good faith can reasonably expect to be justified by the Court. It is essential for the employee to get an early diagnosis of the employment history from a lawyer, whose expertise is employment law, in order to evaluate the legality of eventual exercise of the right to withhold labor.