Ladies and gentlemen, readers of Legal Challenges Journal.
It is no secret to you that the spread of Virus Covid 19 has cast its shadows over all aspects of our lives. There is no doubt that the global economy is at the forefront of those affected by this pandemic. Many studies indicated that economies around the world entered into recession and growth rates declined. Since "Legal Challenges" is a journal that concerns itself with raising legal issues linked to an economic dimension, I received an invitation from a distinguished colleague, who years of study at the Faculty of Law in Kuwait University brought us together. Each of us gained experience in the field of banking field as we practiced the legal profession in Kuwaiti banks. Currently, both of us have a law practice. For all these reasons, in addition to what I know of Areej Hamadeh as a bold person in the face of challenges and her spirit to break into new realms of the legal employment outside the State of Kuwait, as well as her activities in the field of disseminating legal awareness, make it difficult for me to turn down this kind invitation.
As everyone may be aware, the factors that support production are land, capital, and employment - some others bring management in play as well. These factors are the basis of any economic activity. Since employment is a cornerstone of any economic growth, it is necessary for the law to attach such importance commensurate with its impact on economic activity. In this article, I will present my visions of the legal rules that are supposed to be applied to the labor dispute regarding wages if the employment relationship between the worker and the employer continues until after the circumstances related to this pandemic have disappeared. Before submitting this vision, it is important to point out some of the matters in light of which this article was written, and that should they change, the legal opinion we present here may alter accordingly. The first of these is that no special legislation was issued to regulate the provisions of the employment relationship in exceptional circumstances, given that there are calls to enact a special legislation. The government submitted a draft law to introduce amendments to the Private Labor Law that remains undecided by the National Assembly until the date of writing this article. In addition, general rules must be presented based on this opinion that we adopt, including that the Kuwaiti Labor Law did not include any provision that regulates the employment relationship in emergency or exceptional circumstances. As it stands, it completely prohibits the reduction of the worker's wages, even if it was agreed by the worker and the employer. Our opinion is based on the expectation that these conditions are temporary and not permanent. By temporary conditions, we mean the disruption of employment and the curfew that prevented the employer from benefiting from the worker's effort and does not include the loss or inability of the establishment to continue to function after the return of life to normal circumstances for economic reasons related to the business itself. Likewise, it is important to emphasize that some activities were not affected by these conditions, but rather that they may have benefited from these conditions in achieving multiple folds of profits. This is while emphasizing that this opinion is applied in the event of the continuation of the employment relationship after the discontinuity of these conditions, because termination of the employment relationship, whether by agreement of the parties or by a single will entails applying the provisions of the expiry of the employment contract, undisputedly.
It is very important before presenting the opinion that we believe is fairer, to point to the existence of considered scholarly opinions by distinguished jurists who may have concluded different to what we present in this article. They do mainly base their opinion on the fact that it is not permissible to reduce the employee’s wages given the firm provisions under the Kuwaiti Labor Law. They also call for the enactment of a special legislation regulating the provisions of emergency circumstances applicable to the employment relationship. And certainly, they call for this law to be applied retroactively to the current conditions. I will not discuss these opinions in detail because of the nature of this brief article, which is not in a position to observe the principles of scientific research.
The opinion that we adopt is mainly based on the fact that if the parties to the employment contract continue to implement it following the lapse of the conditions that prevented the employer from benefiting from the worker's effort, then it is permissible to agree between them on a wage that is less than what was agreed upon. This period of disruption may be without pay in some rare cases. We rely in this opinion on the application of Article 198 of the Civil Code, which stipulates that ("If, after the conclusion of the contract and before it has been executed, the occurrence of exceptional and general events which were unforeseen when the contract was made make the performance of the contractual obligation, though not impossible, onerous on the obligor with the result of threatening him with exorbitant loss, the judge may, after considering the interest of both parties, modify [alter] the onerous obligation to a reasonable level, by either reducing it [the onerous obligation] or increasing the counter obligation. Any agreement to the contrary is null and void."). It is well-known to legal specialists that this article is a legalization of the theory of emergency conditions under Kuwaiti law. The majority of comparative laws adopt this theory according to a relation that befits the circumstances of each country. We will present in this article the reasons for adhering to this opinion. However, the honesty of the offering of this opinion compel us to refer to the most prominent arguments held by those who refuse to adopt this opinion. They contend that the labor law is a private law and it is not permissible to apply the provisions of the Civil Code while the private law prevails. Undoubtedly, this opinion has much respect, but we, as mentioned above, are concerned in this article with presenting the arguments that we relied upon in our opinion.
The first of these arguments is that if the labor law is really a special law issued to regulate workers relations, because if it does not include a solution to one of the issues, the dispute between the parties to the employment contract cannot be left unresolved and the judge to whom the dispute is submitted cannot refrain from rendering a ruling. The Civil Code has organized such cases and arranged the sources upon which the judge relies on for the rendering of the ruling. It is established in the judiciary and jurisprudence is that the Civil Code is the general law of all laws, that is, if the judge does not find the legislative basis for settling the dispute in the private law, then it is obligatory to search for the provision that governs the matter in other legislation that includes the solution. The Civil Code is the general law of all laws and it is the container that organizes the theory of obligations. In general, all scholars and jurists are unanimously of the opinion that the Kuwaiti Labor Law did not regulate the relationship of employment in emergency circumstances, so the solution is to search in the rules of Civil Code.
Secondly, all the assumptions mentioned in Article 198 are available in the impact of emergency conditions in respect of the employment contract resulting from government decisions related to the Corona pandemic. We are facing exceptional circumstances that occurred after the conclusion of the contract and before its expiry and no one could have expected it. To obligate the debtor - the employer - to implement his commitment will threaten him with a fatal loss.
Thirdly, the exceptional circumstances facing both the employer and the worker justify the dissent to the provisions of the Labor Law temporarily. Of the arguments we cite to support this opinion is that emergency conditions expand the scope of legitimacy so that some actions or interpretations of laws become legitimate while in normal times are illegal. Examples of this, is that the executive authority, especially in Latin legal systems, can, in exceptional circumstances, violate the law to preserve the public interest and can exercise the role of the legislative authority in some emergency cases. What justifies the dissent from these laws is a state of necessity. Again, what we adhere to in the implementation of this provision is not based on dissenting from the applicable law based on the state of necessity, but rather on the basis that adapting the conflict that because of the emergency conditions and that the legislation that regulates the emergency conditions is the Civil Code which is the legislation that the judge is obliged to apply to resolve the labor dispute.
Fourthly, justice requires that the employer shall not be forced to pay the wages of a worker who has not performed the work agreed upon because the basic principle is that the employment relationship is a contractual relationship in which the worker provides the work and the employer provides wages. Any statement differently means that the employer alone bears the burden of public emergency conditions that he did not have a hand in its realization and could not have expected.
Fifth: Laws and judicial rulings seek to achieve justice. The basic principle is that there is no obligation without reason and the employment contract arranges corresponding obligations. It is not correct to compel a party to implement its obligation fully and exempt the contractor from the implementation of the corresponding obligation.
Sixth: Caring for the worker’s interest and the public interest justifies resorting to this opinion, because requiring the employer to pay the full wage of the worker will lead to the termination of the employment contract. In the meanwhile, we stress that it is not permissible in any case if the employer continues to reduce the wage of the worker after the reason ceases to exist, because the necessity is estimated proportionately according to the foregoing.For all of these reasons we are called upon to implement the emergency conditions theory because the rules of the Labor Law that prohibit the reduction of the worker’s wages are decided by the legislator under normal circumstances. If the matter is presented to the judiciary, the application of the emergency conditions theory allows the judge to implement the special circumstances for each of the cases presented and verify whether or not the obligation of the employer to pay the worker’s wages will threaten him with substantial loss. This is because this condition when implementing the provision shall be sufficient to overthrow large economic entities financially solvent and will not benefit from this provision. Its implementing is limited to ventures that were severely affected or whose financial statements reveal that their obligation to pay workers’ wages will cause a fatal loss. Here it should be noted that this solution does not apply to all establishments. Entities which are not harmed by those conditions and continue to enjoy firm and solid financial position should be excluded based on their financial statements. We believe that applying the provision of Article 198 of the Civil Code is a solution that achieves justice and takes into account individual differences and circumstances in each case separately, since there is no obligation for the solution to be unified for all cases according to the respective circumstances to be revealed in each case.
In conclusion, we hope that this article will be made available for reading soon, as life returns to normal.