Question juridique clé
Whether the employer could invoke the exception of non-performance under Art. 82 CO to withhold full salary because it was dissatisfied with the employee's work.
Solution extraite
No. The employee's contractual performance had not been shown to be unperformed, so the third condition for Art. 82 CO was missing.
Motifs extraits
The exception of non-performance requires a synallagmatic contract, mutual exigibility, and failure to perform or offer the counter-performance. Here, the factual finding that the contested presence hours did not prove non-performance of the contractual work was binding, so the employer could not rely on Art. 82 CO.