« Out stepped a little live lady mouse, and made a curtsey to the taylor ! »

The link between law and fairy tales is not immediately obvious. It is not easy to relate the work of the appeal courts to the adventures of the Three Little Pigs, case law seems less entertaining than the Grimm’s tales and – let’s face it – the pleadings of my colleagues are not always as good as The Little Mermaid or the Adventures of Peter Rabbit. But appearances are deceptive.

As a volume of studies on law and fairy tales [Marine Ranouil / Nicolas Dissaux, Il était une fois… Analyse juridique des contes de fées, Paris, Dalloz, 2018] brilliantly reminds us, fairy tales have a strong normative aspect. They most often depict the peregrinations of an often rather generic character, confronted with a tragic or painful event, who undergoes various trials before the restoration of normality is accompanied by a moral (explicit or not). This is certainly different from the legal norm, but only to a certain extent. This is primarily because there are areas where law and morality overlap. It is also because fairy tales and popular wisdom can also permeate common law and customs (not everything began with the drafting of the Civil Code!). Finally, it is because there are overlaps, at the confluence of German Romanticism and the School of Historical Law. We are thinking here of the Grimm brothers, of course, whose links with Savigny are well known. [Alfred Dufour, Droits de l’homme, Droit naturel et Histoire, Paris, 1991, pp. 165-176 in particular].

The Gloucester Tailor [to be relocated to Geneva for the purpose of this blog] was published by Beatrix Potter in 1903 and tells the story of a poor tailor trying to survive in his freezing workshop during a harsh winter [see the current Penguin Pocket edition, 2022]. He has a very important order to make for the Mayor of Gloucester’s wedding on Christmas Day, but he is ill and tired, and before long he is running out of food and thread, as well as time! How will he ever finish the magnificent coat and embroidered waistcoat? Luckily, there are some very kind and ingenious mice in the chest of drawers who help the poor tailor with his work and, of course, save him from his predicament.

Now let’s imagine that the tailor is very pleased with these new recruits and starts making them work on a regular basis, paying them with pieces of cheese. As fortune and success come the taylor’s way, the poor mice have to work harder and harder for their boss, who becomes lazy and stingy [the tale is set in Geneva]. As fate would have it, a delegation of mice turned up at the tailor’s to demand an improvement in their working conditions and a pay rise (300 grams of Gruyère cheese per month per mouse). They were immediately terminated, swept aside with a broom and, fearing for their lives, had to leave the tailor’s shop forthwith. They decided to sue the taylor, asking payment of various amounts (salary up to the notice period, compensation for unjustified immediate dismissal, Geneva minimum wage).

They are now in front of you, in the reception room of your law firm, making mouse noises, gnawing on the furniture and expressing great anger in tiny voices.

What will you tell them?

First, there is the question of the capacity of mice to be parties in civil proceedings. Under art. 66 of the Swiss Code of Civil Procedure (CPC), capacity to be a party is conditional on enjoyment of civil rights.

Oviously, little mice do not enjoy civil rights, regardless of the sentient status that animals may be recognised as having. However, this has not always been the case: animal trials are well documented in the Middle Ages, whether for overtly criminal behaviour (a pig eats a small child) or for acts consistent with their nature (pests that ravage the fields). We know that animals could be imprisoned, questioned, that some had confessed to their crimes, and that they benefited from a defence as well as a regulated procedure. [Michel Pastoureau, Les extravagants procès d’animaux, in: Eric Baratay (ed.), Les Animaux dans l’histoire, Paris, 2023, pp. 207-226] Having said that, we are not dealing here with criminal matters, and the Enlightenment has since removed humans from animals, reducing them to the status of chattels, even sentient ones. So what is to be done?

There are in fact two ways around this obstacle: (i) assume that mice do indeed enjoy civil rights in this parallel world of the fairy tale, or (ii) consider that the mice are not mice, but young women (or men) who identify with mice, in other words that they are in a particular gender transition process that will certainly develop in the future.

The language issue should not pose any particular difficulties. The right to be heard guarantees the right to be assisted by an interpreter during oral hearings in the event of insufficient knowledge of the official language used before the Court [art. 29 al. 2 Cst; PC CPC – SCHNEUWLY art. 129 N4]. The little mice should therefore be able to obtain the assistance of a Murinese interpreter, bearing in mind that they may also apply for legal aid (art. 117 et seq. CPC).

The little mice will be able to act jointly against the tailor under art. 71 para. 1 of the Swiss Code of Civil Procedure, which provides that persons whose rights and duties arise from similar facts or legal grounds may act jointly.

Following a request for conciliation filed by the little mice with the Registry of the Labor Court (Tribunal des prud’hommes, boulevard Helvétique 27, case postale 3688, CH – 1211 Genève 3; https://justice.ge.ch/fr/contenu/tribunal-des-prudhommes), the conciliation authority attempted to settle the matter with the parties. The little mice had doned their best mousey clothing and little hats, but the taylor – how rude ! – failed to appear at the hearing. The conciliation authority granted therefore the little mice leave to proceed, enabling them to file a claim for payment within three months.

The Labor Court had to determine its subject-matter jurisdiction in the case of the rodent’s claim for payment. According to art. 1 al. 1 let. a of the law of 11 February 2010 on the labor court (LTPH; RS-GE E 3 10), disputes arising from an employment contract, within the meaning of title ten of the code of obligations, are judged by the labor court. So was there an employment contract?

The tailor’s argument can be summed up as follows: the little mice were not in a relationship of subordination; they were content to lend a hand when they felt like it, in exchange for little bits of cheese or biscuit. Moreover, there was no real salary paid, and salary is a constituent element of the contract of employment.

This recalls a well known ruling of the Appeal Labor Court [CAPH/91/2014 of 05.06.2014], which first reminded the readers that by the employment contract, the worker undertakes, for a fixed or indefinite period, to work in the service of the employer and the latter to pay a salary fixed according to the time or work provided (art. 319 para. 1 CO).

The four characteristic elements of a contract of employment are a personal performance of work, the provision by the employee of his or her time for a fixed or indefinite period, a relationship of subordination and a salary.

With regard to wages in particular, remuneration is paid in return for the time made available by the worker to the employer. There is no contract of employment when the person carrying out the activity intends to do so free of charge. There are cases of pure convenience that do not create a contractual relationship, such as friendship. This is the case when a person provides occasional assistance free of charge in a business run by members of his family, in gratitude for the support they have given him; it is also the case when a person undertakes a brief unpaid work placement with a view to choosing a future profession.

In the above mentioned appeal ruling, it was not disputed that the employee had regularly provided work for several years, i.e. from 2007 to 2011, without interruption, while in the service of the defendant. He was subordinate to the respondent’s management and received instructions from it in the same way as the association’s other employees.

With regard to the salary element, it appeared that the appellant’s services were not provided free of charge. In return for his work, the appellant was paid a regular fee, the amount of which was twice increased during the course of the parties’ collaboration. What was decisive was that this remuneration was indeed consideration for the activity performed by the person concerned.

It should also be noted that the regularity of the remuneration paid distinguished it from that received by volunteers working for the employer. A volunteer called as a witness stated that the employer only occasionally paid her a modest sum as a reward. Although hardly less modest, the payment of remuneration to the person concerned was, on the contrary, systematic and the relationship between the parties clearly differed from that of pure complaisance between friends or members of the same family.

The recitals of this judgment can be transposed without difficulty to the case of the little mice. The tailor paid wages in kind on a regular basis in return for work performed on a regular basis. There was therefore a contract of employment.

So how should the little mice be paid?

In the absence of a CCT or CTT, the usual wage, or even the Geneva minimum wage (https://www.ge.ch/appliquer-salaire-minimum-genevois), would be used to calculate wage differentials and the amount of compensation for immediate and unjustified dismissal (art. 337 ff CO). This was indeed a case of unjustified immediate dismissal, since the little mice had been swept out of the tailor’s shop for no reason. An ordinary dismissal, on the other hand, would have been deemd unfair because of its obvious retaliatory nature (art. 336 al. 1 let. d CO).

What the story doesn’t say is that, after their victory in court, the little mice went out clubbing, got drunk and, after starting a general brawl, ended up in jail, where police bulldog Adjutant Brutus had to decide whether or not grant them legal assistance and call legal aid. But that is quite another story….

Me Philippe Ehrenström, attorney, LLM