The obligations of the employer and the employee, in the context of the contract of employment, are specific (but, at the same time, extensive). The most known among them are the “main” ones. The main obligation of the employee is to provide the agreed work, which they make available to the employer (648 Civil Code). The main obligation of the employer, respectively, is the payment of the agreed salary to the employee. However, as in any contractual relationship, it also happens that in an employment contract the parties are also responsible for a set of other, additional, obligations: what we call “ancillary”.
We will be concerned here with the ancillary obligations of the employee (which we only mentioned in our previous article). In an article to follow, we will approach them on a case-by-case basis.
We will also find the ancillary obligations with the term “secondary”. It would, however, be wrong to regard them as of degraded and secondary value and importance in relation to the main ones. And precisely for this reason it seems impressive that this issue has occupied only a small part of the theory (in particular: Zerdelis, Individual Labor Law, Individual Labor Relations, Sakkoulas, 2019, p. 709 ff.)
The main difference between the ancillary and the main obligations is that (unlike the latter) ancillary obligations are not directly provided for as an “exchange” (such as, for example, the obligation to provide work for the agreed salary – and vice versa).
It is important to note here that ancillary obligations can sometimes be extended. Their starting point may be placed in the (shorter or longer) period of negotiations for the conclusion of the individual employment contract. They occupy, uninterruptedly, the entire duration of its validity. They finally extend, in some cases, even after the termination of the employment contract.
Distinctions of the Ancillary Obligations
According to the Civil Law, the ancillary obligations are distinguished by the criterion of the function and the purpose that they serve. They are basically divided into two main categories: (a) security obligations and (b) protection obligations. In more detail:
(a) Obligations to Secure the Main Obligation
The purpose of this category of obligations is to ensure and facilitate the fulfillment of the main obligation. These obligations do not necessarily require special regulations (legal or contractual). They derive, in any case, from the general obligation of good faith (: 288 Civil Code).
The bona fide behavior, therefore, that the parties must display, obliges them to act or omit any action, which would result in the abnormal (more precisely: improper) fulfillment of the main obligation. The ancillary obligations, therefore, are closely and directly linked to the main obligation and, therefore, are not independent in nature.
These obligations are therefore intended to ensure a concrete result. Specifically, in the realization of the purpose of the contract (eg providing instructions for use when selling a machine). Any violation of them creates the possibility for the other party to refuse the main obligation.
Under the employment contract, the category of securing obligations may include, inter alia, the obligations of:
(i) Informing the employer of any damage, defects or malfunctions of the machinery, equipment or materials handled by the liable employee. Also, of the details and the course of execution of their work. Lastly, of personal situations (illness, etc.) that make it impossible to work.
(ii) Compliance with any dress code. The obligation to comply with the dress code may be imposed for security reasons (eg safety clothing / footwear). It may, at other times, be established in a specific business or industry (eg dress code for supermarket employees, medical centers, business executives).
(iii) Safeguarding the conditions for (adequate) provision of work. The employee is obliged to take care not to fall into a situation that makes it difficult or impossible for them to provide the agreed job (eg: non-use of alcohol or other substances).
(b) Protection Obligations
The obligations of protection generally aim at the observance of certain behavior that deterred the causing of damage to the personal property and assets of our counterparty. And even more: that aim at their protection.
Under the employment contract, the category of specific obligations of the employees includes the obligations of action and the obligations of omission of the employee. In more detail:
(i) Obligation to take action: These are, among other things, obligations to inform the employer of any impending damage to their personal property or assets. Of course, these also include the obligations of the employee not to damage the specific goods of their employer or to prevent impending, corresponding, losses.
Furthermore, this category includes the obligation of the employee to provide their work beyond the agreed time limits in cases of emergency.
Under this category is also the employee’s obligation to inform the employer of any illness. In this case, the employee’s illness may not prevent them from performing their job. It can, however, be contagious. The employee is obliged, in this case, to protect the health of their colleagues (typical case, nowadays, from the disease from covid-19).
(ii) Obligation to omit an action: These are obligations that are even more important and arise from the obligation to take into account the interests of the other party.
This category includes, inter alia, the obligations of omission of competition acts and breach of the obligation of confidentiality. Also, the obligations of non-destruction or damage of tools, equipment or materials provided by the employer to the obligated employee.
Consequences of the breach of the ancillary obligations
The breach of ancillary securing obligations is closely linked to the main obligation, which affects it. Any refusal of a flight attendant to comply with the dress code of the airline in which they work will not, of course, allow them to work. That is, in cases where the employee violates these specific, ancillary obligations, there is a direct effect on their obligation to provide their work (: main obligation). There is, then, the issue of inability to fulfill (or issue of defective fulfillment) of the main obligation. The corresponding legal consequences therefore occur. In the example of the flight attendant, they will not be allowed to work and, of course, they will not receive the corresponding salary. In case of persistence in their refusal, their dismissal will be justified (when there are no more lenient, eg disciplinary, sanctions).
Breach of ancillary protection obligations (mainly: of the obligations to omit) is also not without consequences. It is possible that the conditions are created for an action (omission and / or compensation) against the offender. Also, in some cases of breach of protection obligations (eg breach of confidentiality or competing activities) it is possible that the conditions for criminal prosecution against the offender are met.
Finally, the breach of ancillary obligations of the employee, regardless of their type, may create the grounds for initiating disciplinary proceedings against them; even create the grounds for dismissal. This will happen when the Labor Regulations provide for corresponding disciplinary measures and penalties.
Also, in the event of damage to the employer caused by any breach of ancillary obligations, the employee may have to remedy it. Clearly, in proportion to the degree of fault of the latter.
It is clear from the above that the employee has multiple obligations. Except for the main (: job supply), they also have several (: innumerable) ancillary ones – regardless whether there is a specific reference within the employment contract or not. The ancillary obligations are not, in any case, of minor importance.
Any violation of them has significant consequences and, at the same time, constitutes ground for sanctions against the offender.
The question arises, of course: Should we start studying them up?
Of course not!
As long as we do our job in good faith – with the intention of defending (and not harming) the interests of our business-employer.
For a better understanding, however, of these complex issues, an article of ours, a more specific one, is to follow – with an analysis of the individual-ancillary obligations.
P.S. A brief version of this article has been published in MAKEDONIA Newspaper (December 26th, 2021).
Disclaimer: the information provided in this article is not (and is not intended to) constitute legal advice. Legal advice can only be offered by a competent attorney and after the latter takes into consideration all the relevant to your case data that you will provide them with. See here for more details.