During my childhood, the public Labor Day holiday on May 1 long was an opportunity to make my first yearly visit to my mountainous hometown, Deir al-Qamar, as spring began and the severe cold there subsided. It was a chance for me to visit my family’s historical home and satisfy my curiosity about my grandparents’ belongings and legacy. One year, I ventured toward the library of my great-grandfather, Constantine Tabet, who was a judge and then a public prosecutor in the Ottoman Empire’s Mount Lebanon Mutasarrifate. There, I came upon a rare copy of Sharh al-Majalla by Selim Rustem Baz (another Deir al-Qamar local and a member of the Ottoman State Council).[1] The book is an explanation of the Majalla [Mecelle], an Ottoman civil code derived from Hanafi doctrine and enacted by the Ministry of Justice in Istanbul in 1882.

 

I did not know at the time that, years later, I would become a lawyer. I never imagined that, despite the fall of the Ottoman Empire and the rise of the Lebanese state with its own laws, I would later invoke the provisions of the same code. During my work on the case that the workers of Spinneys supermarkets filed against the parent company, I invoked Article 100 of the code, which stipulates that, “Anyone’s attempt to contradict something he did shall be disregarded”, to rebut the opponent’s contradictory arguments. Doing so was possible because, under Article 1106 of the Lebanese Code of Obligations and Contracts, the Majalla remains in effect insofar as it does not conflict with that law. This generally applies to the first 100 articles, which are a collection of doctrinal rules and principles governing civil law.

 

Now, years after my spring trips to Deir al-Qamar, the course of the country has changed, along with the significance of May 1. The statement by the Legal Agenda and Lebanese Labor Watch, which I recited in a press conference on 10 December 2019, describes the situation of workers in Lebanon – particularly the rapid spread of dismissals that began in early October 2019 and approached 160,000 before the year had even ended according to some studies – as “like an epidemic”. At that time, I did not anticipate that in early March 2020 we would literally face an epidemic (nay, a pandemic) that would exacerbate dismissals until the country’s unemployment and poverty rates would reach 40% and 50% respectively, according to some forecasts. The situation resembles the state of the country a century earlier during the famine and Spanish Flu pandemic (1916-1918) in the lead-up to the Ottoman Empire’s collapse. Just as occurred in late 2019 following Lebanon’s economic collapse, today, following the spread of COVID-19 and the government’s declaration of a general mobilization, some employers are attempting to preempt losses by shedding the burden of salaries. They have flocked to reducing their workers’ salaries and ultimately dismissing them en masse under two main pretexts, namely economic factors and force majeure (COVID-19). Usually, they do so without following the relevant peremptory provisions of the Labor Code, particularly those requiring them to inform and consult the Ministry of Labor.

 

This trend was only possible because of the culture of flouting legal texts in the hostile sphere of neoliberalism and the weak institutional protection for workers in Lebanon (whether on the level of labor unions, the Ministry of Labor, or even the judiciary), which is reminiscent of the definition of justice that Thrasymachus gave to Socrates in Plato’s The Republic: “Justice is nothing but the advantage of the stronger”.[2] The stronger, in this case, is the employer, who is in control of the money. However, the primary function of the law is to turn this definition of justice on its head by redistributing authority and placing controls on it.[3] The function of the Labor Code, in particular, goes further to include creating a protective social public order (ordre public social) for workers that deters employers from arbitrarily exploiting their power against workers. This allows the traditional rules of civil law to be transcended and, subsequently, the provisions most beneficial to workers to be put into effect, far removed from the legal exceptions permitted in regular civil relations (i.e. “reformation in pejus”, in legal jargon) that could be detrimental to the workers’ situation in the absence of such a protective social order.[4] For example, employers cannot draw upon the provisions of the Code of Obligations and Contracts (such as Article 631) to justify nonpayment of their employees’ wages while the latter stay home pursuant to the general mobilization (“no work, no pay”) as doing so would conflict with the aforementioned protective public order. In particular, it would violate Article 7 of Arab Labor Convention no. 15 of 1983, which stipulates that workers have a right to their full wages even if they performed no work for reasons beyond their control.[5]

 

What, then, about ending employment contracts because of economic factors or force majeure, as employers today are invoking amidst the economic collapse and the spread of COVID-19? By the logic of traditional civil law, the matter may seem intuitive: the country is suffering an economic collapse, and the pandemic and general mobilization constitute a force majeure for a number of establishments and sectors that justifies canceling contracts. However, this abstract logic assumes that the parties to the contract are equal and does not account for the balance of power in labor relations or the socioeconomic disaster (the likes of which the country has not seen for over a century) that such cancellations would entail. This is exactly what the protective social public order of the Labor Code takes into account. So how does this law protect workers in a time of collapse? What architecture does it establish to achieve fair social justice far removed from “justice at the advantage of the stronger”? Subsequently, in a time of collapse, via what means can workers access justice and preserve their rights? In this article, I will attempt to provide an answer to these questions in the form of preliminary ideas for a model defence pleading to defend workers dismissed on the basis of force majeure or economic factors.

 

“Necessities Shall Be Assessed According to Their Extent”

 

Paragraph F of Article 50 of the Labor Code stipulates that, “The employer may terminate some or all employment contracts in effect in the establishment if necessitated by a force majeure or economic or technical conditions”. To this end, the article imposes two basic conditions on the employer:

1. That the employer inform the Ministry of Labor of its desire to end the contracts one month before carrying it out.
2. That the employer consult the ministry to develop a final program for the termination that takes into account the seniority, specialization, age, and family and social status of the workers and the means needed to re-employ them.

 

If the employer fails to inform the Ministry of Justice of its desire to terminate the contracts and carries out the termination, then the decision is deemed to be based on an unacceptable reason and therefore arbitrary.[6] A study that the Legal Agenda produced in 2019 on the rulings of the Labor Arbitration Councils in Beirut and Mount Lebanon in 2018 showed that Lebanese jurisprudence has strictly considered the conditions stipulated in Paragraph F of Article 50 to be “indispensable” and deemed any termination that does not comply with them to be an arbitrary dismissal per Paragraph A of Article 50 (whereby the employer must compensate the worker via the mechanism specified in that paragraph).[7] Moreover, the study showed that jurisprudence has not considered the mere declaration of bankruptcy by some companies sufficient to justify dismissal; rather, in this case too, it has required the company to comply with the aforementioned indispensable formal conditions. The employer’s declaration of bankruptcy “does not exempt him from compensating [the worker] for employment contract cancelation or from the notice period as it did not comply with Paragraph F of Article 50 of the Labor Code”.[8]

 

Furthermore, informing the Ministry of Labor is also not in and of itself enough. On 14 April 2020, the Notre Dame De Liban Hospital’s administration announced that it was closing all its hospital departments because of economic and financial circumstances, informing the Ministry of Labor on the same day of its desire to cancel its employment contracts. The following day, it informed its employees that their contracts were canceled as of 16 May 2020 (i.e. approximately one month later). While the hospital’s administration may seem to have respected the conditions of Paragraph F of Article 50, the legal reality is that it did not. Firstly, the hospital administration implemented one of the indispensable conditions (informing the ministry) while disregarding the other (consulting the ministry). The two conditions are cumulative, not independent. Secondly, it did not respect even the formality of the first condition. By informing the ministry of its intent to terminate the contracts and then informing its employees of the termination just one day later, the hospital administration circumvented the law’s explicit text (“one month before” carrying out the termination). This is because informing its employees of the termination is tantamount to carrying it out. It cannot be [legally] said that it informed them one month beforehand because this would deprive Paragraph F of Article 50 of its formal aim. The goal of the one-month timeframe is to allow the Ministry of Labor to exercise actual oversight over the motivations for termination, on one hand, and to coordinate with the employer to prevent it from making the termination decision unilaterally (as terminating all the contracts may not be necessary, for example), on the other. Hence, because the hospital’s termination of its workers’ contracts bypassed this step, it constitutes an arbitrary dismissal. The Court of Cassation underscored this notion in a principled decision that it issued in 1999 in a case where the employer had carried out the termination decision one day after informing the Ministry of Labor. The court found that the employer had violated the aforementioned indispensable condition and the dismissal was therefore based on an “unacceptable reason” and akin to “an abuse of the right to dismiss”. The court thereby deemed that the worker was owed compensation equal to 12 months of wages.[9]

 

The above addressed formality, but what about substance? Merely applying the text’s abstract formal conditions also deprives it of its spirit and the purpose for which it was enacted, which stems from the nature of the Labor Code and the protective social public order that it creates. Here lies the fundamental role of the Ministry of Labor (i.e. the state). It has a responsibility to confirm and validate the employer’s legal narrative, thereby preventing it from exploiting its power to unilaterally make the decision and modifying its workers’ status without any oversight or accountability. This role has been confirmed by Lebanese jurisprudence, as shown by the aforementioned Legal Agenda study. Lebanese courts have insisted that if the Ministry of Labor does not approve the employer’s program for terminating some of its employment contracts (and, by extension, does not verify the economic circumstances and confirm that they are dire enough to justify the termination), and no agreement with the ministry is reached regarding the means of reemploying the dismissed workers, then the employer may not put the dismissal into effect. If the employer does, it will have violated Paragraph F of Article 50 and, by extension, the dismissal will be based on an invalid reason and akin to an abuse of the right of cancellation. Several decisions have recalled that “the legislator’s intent goes beyond the formal procedures to include restricting the employer’s freedom to prevent him from unilaterally dismissing for economic motivations related to how his establishment operates”.[10]

 

Hence, the causes of dismissal that the employer invokes must be examined and several questions answered to confirm their validity. In this regard, we shall only examine the two main causes that are usually invoked at present, namely force majeure and economic factors.

 

Force Majeure

 

Doctrine and jurisprudence agree that the conditions of force majeure must be applied restrictively in labor cases to ensure job security and social peace. Jurisprudence has required the following conditions to be met for force majeure to justify employment contract cancellation: that the event be unexpected, unavoidable, not an action by the employer, and, most importantly, that it render performance absolutely impossible rather than just difficult or more costly for the employer.[11] In this regard, Paragraph F of Article 50 can be supplemented with other provisions of the law, so I will once again draw upon the principles of the Ottoman Majalla, which remain in effect as previously explained. Under Principle 22 – “Necessities shall be assessed according to their extent” – the extent to which the employer can adapt to the force majeure must be examined. It may not render continuing the employment impossible in all cases. For example, some establishments (including in the services and retail sector) have converted their operations into home delivery services. Moreover, the general mobilization measures have demonstrated that many workers – even artisans – can perform their tasks from home. In this regard, labor laws (including the International Labor Organization’s Convention C177, which Lebanon has not ratified) recognize “working from home” as one of the types of work subject to labor law and equate it to other types of paid work. Even the administration of Lebanon’s National Social Security Fund has incorporated people who work from home into Enrollment and Registration Regulation no. 7, clarifying that they must be considered workers even if they own part of the equipment needed for their work, their relationship with the employers is not exactly the same as that of workers in the workplace, and they enjoy broader freedom from the employer’s authority or oversight.[12] This suggests that the legal framework is ready for the evolving nature of work and innovations that emerge from circumstances like the COVID-19 pandemic and the general mobilization.

 

Hence, the key question is what the employer can do to adapt to the force majeure and how the nature and location of the work can be reimagined to save the establishment instead of terminating its employment contracts.

 

Economic factors

 

To begin with, economic difficulties alone are not enough to justify dismissal, nor is presenting the establishment’s books that show these difficulties. Otherwise, Paragraph F of Article 50 would be deprived of its spirit, and the examination of the objective reasons for these difficulties would become an abstract, formal procedure that violates the principles of the protective social public order. Here too, we must draw upon the Majalla’s provisions, which can govern the spirit of the work of the Ministry of Labor (and thereafter the judge, should the dispute continue before the judiciary) in this regard. Principle 27 stipulates that, “The greater harm is removed by the lesser harm”, while Principle 28 stipulates that, “If there is a conflict between two evils, the more harmful one shall be heeded by committing the lesser one”. These principles match the philosophy of the protective social public order, namely averting the greater harm. In this case, the greater harm is definitely the socioeconomic disaster arising from the mass layoffs that the country has been witnessing for six months [at the time of writing], which have affected hundreds of thousands of workers in Lebanon (i.e. approximately half of them).

 

On this basis, the employer’s economic circumstances must be so dire that dismissal is the only solution left. Insufficient profits are not enough to justify dismissal as, “Deterring evils shall take precedence over reaping benefits”, according to Principle 33 of the [hard copy version of the] Majalla. Hence, several other questions must be answered. The most important are: Is terminating some of the contracts to save the establishment the only solution? Can the work be rearranged or the wages reviewed to save it? Did the people in charge of the establishment manage it properly, or did their mismanagement lead to the hardship? What capacities of the establishment can be exploited to save it without terminating the contracts? Answering all these questions, among others, is up to the employer. This is the tax that the employer pays for the position of power (and hence authority) that it enjoys in labor relations as, “The advantage shall be in proportion to the burden and the burden to the advantage”, according to Principle 88 of the Majalla. Hence, the worker alone cannot be burdened with the bill of the economic circumstances. The bulk of the bill falls firstly on the shoulders of the advantaged party, namely the employer in control of the money.

 

Here emerges the true role of the Ministry of Labor (and thereafter the judge), not as a false witness for the dismissal but as an active guardian of republican values protecting the social public order such that dismissal cannot occur without its validation and approval in accordance with all the aforementioned conditions. However, this guarding role does not end there, so what comes after the workers’ dismissal under Paragraph F of Article 50?

 

“Something Permissible With an Excuse Shall Be Invalid Once the Excuse Disappears”

 

The termination of the establishment’s employment contracts under Paragraph F of Article 50 and in accordance with its conditions does not, in and of itself, end the duty of the employer and role of the Ministry of Labor. Paragraph G of the same article stipulates the following:

 

“Workers dismissed under the previous paragraph [i.e. Paragraph F] shall enjoy, for one year from the date they leave work, a right of priority (preference) for reemployment in the establishment from which they were dismissed if its operations return to normal and they can be employed in newly created jobs therein.”

 

This provision is an extension of Principle 23 of the Majalla, which states that, “Something permissible with an excuse shall be invalid once the excuse disappears”. In other words, if the economic factors or force majeure justifying the dismissal disappear, and the establishment’s operations can be returned to normal, the workers dismissed on that basis have precedence in the new recruitment process and therefore enjoy a minimum level of job stability and permanence. However, the legislature’s use of the words “normal” and “can” allows the employer broad leeway to interpret it in a manner adverse to the dismissed workers’ interest. While such an interpretation could deprive Paragraph G of its substance and purpose, court jurisprudence (in Lebanese law and in comparative French law) has limited the potential for interpreting it and supplemented it in a manner that accords with its spirit, heeds the protective social public order, and is most fair and beneficial to the workers – as, “Putting words into action shall be preferable to ignoring them”, according to Principle 60 of the Majalla.

 

On this basis, court jurisprudence specified, to begin with, the formal conditions that must be met to put this paragraph of Article 50 into effect, deeming that the employer’s letter of dismissal on the basis of force majeure or economic circumstances must mention “the dismissed workers’ priority for reemployment with the establishment” in accordance with Paragraph G.[13] If the letter does not, then the employer must compensate the worker for violating these formal conditions. In the case of the Notre Dame De Liban Hospital, the letter of dismissal that the hospital’s administration sent to the workers did not mention their priority for reemployment, nor did it even refer to Paragraph G of Article 50. This omission in and of itself is another legal violation for which the workers may demand compensation.

 

The above addressed the question of form. As for substance, to refute any interpretation of Paragraph G of Article 50 that deprives it of its substance and purpose, jurisprudence has deemed that the employer must offer the workers whose jobs were abolished or converted any vacant jobs from the same or lower category, even if the result is a core modification to the employment contract, or else be deemed to have canceled their contracts arbitrarily.[14] The intent of this requirement is to prevent the employer from shirking Paragraph G of Article 50 on the pretext that there are no jobs similar to those that were abolished. In my view, this requirement narrows the interpretation of the paragraph in favor of the workers. The priority here, pursuant to Principle 29 of the Majalla (“The lesser of two evils shall be chosen”), is to provide job security and permanence instead of preventing their reemployment under a variety of pretexts. However, in this case, the employer has an additional general obligation to provide integrated training so that the workers can adapt to the development in their jobs.[15] Moreover, the jurisprudence of the Labor Arbitration Councils in Lebanon holds that if the workers are reemployed by the same establishment, their prior service must be taken into account[16] such that years of seniority are determined based on the actual beginning of employment irrespective of any interruption, no matter how long, under Paragraph F of Article 50.

 

Conversely, an employer who violates Paragraph G of Article 50 must compensate the workers concerned on this basis. This compensation is separate from the compensation arising from the dismissal under Paragraph F (should it occur in accordance with the termination program) or under Paragraph A (should it be arbitrary) and is therefore added to it.[17]

 

The above prompts a rethink of the role of the Ministry of Labor. Its work does not end with the consultation process necessitated by Paragraph F of Article 50. Rather, it must extend to include following-up and investigating the employer’s circumstances for at least one year after the economic or force majeure-based dismissal to confirm that it is following Paragraph G, and prosecute it if not.

 

However, the aforementioned protection that the Labor Code and the principles of the protective social public order are supposed to provide for workers’ rights and the right to work in general remains more a principle than a practice. Treating workers as disposable remains common because of their precarious circumstances. We addressed the causes of this precarity and what state agencies and institutions must do today to curb the epidemic of mass dismissals and the social disaster emerging from it and the economic collapse in the speech mentioned earlier.

 

Facing the state’s resounding absence in this context in recent months, what can workers do to defend themselves and protect their rights?

 

The Workers’ Revolution and Their Right to Defend Themselves

 

My great-grandfather was born in Deir al-Qamar in 1858. That same year, the peasants’ revolt in Keserwan broke out in response to the feudal system, specifically against the rule of the al-Khazen and Hobeiche families. These families had not rectified the peasants’ tragic socioeconomic situation and had brutalized and subdued them while monopolizing agricultural profits. The revolt quickly transformed from a peaceful uprising led by Salih Safir (“sheikh of the people”) into an armed revolt following the al-Khazen family’s intransigence toward the peasants’ demands and Tanyus Shahin’s assumption of the uprising’s leadership. Consequently, the al-Khazen family was toppled and expelled from Keserwan and a semi-independent, representative republic (inspired to some extent by the principles of the French Revolution) was established in the region (albeit for a brief period). The situation of the country today is no different from the situation in Keserwan 160 years ago. Just like the al-Khazen family then, the ruling oligarchy today did not rectify the extensive tragedies of the Lebanese people after the October 17 revolution broke out. It persisted with its policy based on monopolization, privileges, and clientelism and even tried to exploit the COVID-19 pandemic to re-extend its claws into society, only to hit a second wave of revolt that began to take shape a few days ago [at the time of writing], particularly following the Lebanese lira’s historic deterioration.

 

Lebanon’s workers are the cornerstone of today’s revolution, and their battle is the battle of the entire Lebanese people. They can resort to the judiciary to ensure their rights, as we explained above (and to this end, I refer to the illustrated guide by the “My Work, My Rights!” network, which explains how to access the Labor Arbitration Council in the case of any difficulties or abuse at work and was published on the Legal Agenda’s website). However, workers can also wage their battle outside the courts by resorting to self-help justice and the right of self-defense. When the public authorities are incapable of performing their functions in protecting people, self-help justice and self-defense become legitimate and justified means of deterring abuse (such as nonpayment of a worker’s entitlements). This right, derived from natural law, is even observed in Article 49 of the Lebanese Labor Code, which stipulates that, “A worker who has in his possession something he made may exercise the right of retention” (which is a kind of self-help justice). The article adds that the worker may also sell “movables submitted to the worker to make, repair, or organize and not collected within two years of the date of their completion” after obtaining permission from the competent judge to do so at auction in order to obtain “the compensation that the employer owes him for the thing submitted to him”.

 

Hence, the workers’ battle today, just like the battle of the Lebanese people in general, is an existential battle to defend themselves, reclaim the state from the tyranny controlling it, and establish a new, fairer system, just like our ancestors tried to do one spring in 1858. Only through this battle can the workers’ spring appear and can we emerge from the era of collapse.

 

Finally, I would like to dedicate this article to our comrade Ahmad Dirani, executive director of Lebanese Labor Watch and one of the most prominent figures of the union movement in Lebanon.

 

This article is an edited translation from Arabic.

 

 

[1] Selim Rustem Baz, Sharh al-Majalla, 3rd edition, al-Matba’a al-Adabiyya, Beirut, 1923.

 

[2] Plato, The Republic, I, 338c.

[3] Michel Foucault, Discipline and Punish, Gallimard, 1975.

[4] Antoine Jeammaud, “Droit du Travail” in Dictionnaire de la Culture Juridique, Quadrige/Lamy-PUF, 2003.

[5] Arab Convention no. 15 of 1983 concerning the determination of and protection of wages, approved by the Arab Labor Conference in March 1983.

[6] William al-Ghurayyib, Qanun al-‘Amal al-Lubnaniyy: Hadiruhu wa-Mustaqbaluhu, 1st edition, 2014.

[7] Myriam Mehanna and Hala Najjar, “Nashat Majalis al-‘Amal al-Tahkimiyya fi Muhafazatay Bayrut wa-Jabal Lubnan 2018 (7): Kayfa Qarabat al-Majalis Tabrir Ashab al-‘Amal li-l-Sarf? Ahkam Ra’ida hawla Dawabit al-Sarf li-Asbab Iqtisadiyya”, The Legal Agenda, 27 August 2019.

[8] Decision no. 12/2018, Labor Arbitration Council in Mount Lebanon, presided over by Judge Paula Slailati.

[9] Decision no. 115, issued 29 June 1999, Court of Cassation, 8th Chamber, Sadir fi al-Tamyiz – al-Qararat al-Madaniyya – 1999, p. 770.

 

[10] Decision no. 627/2018, Labor Arbitration Council in Beirut, presided over by Judge Hiyyam Khalil; Decision no. 673/2018; and Decision no. 475/2018.

[11] Al-Ghurayyib, Qanun al-‘Amal al-Lubnaniyy, op. cit.

[12] Ibid.

[13] Cass. Soc. 27 October 1999, Le Nouveau Code de Travail Annoté – 31ème, 2011, p. 177.

[14] Decision issued on 20 April 1998, Court of Cassation, Social Chamber.

[15] Decision issued on 25 February 1992, Court of Cassation, Social Chamber.

[16] Decision no. 21, issued 15 January 1971, Labor Arbitration Council in Mount Lebanon.

[17] Cass. Soc. 5 October 1995, Le Nouveau Code de Travail Annoté – 31ème,. 2011, p. 179.