Facts
[A.] is a Zurich bank whose fiscal year runs from April 1 to March 31 of the following year. [B.] was employed as a Senior Private Banker at [A.] from 2009 to 2013. His employment contract provided for an annual salary of CHF 219,240 and additional bonus payments on a voluntary basis.
[B.] sued [A.] for the payment of a bonus for the 2012/2013 fiscal year and two tranches of a "Retention Award" for the 2011/2012 fiscal year. The Labor Court dismissed the claim, but the High Court of the Canton of Zurich ordered [A.] to pay CHF 128,505 to B. [A.] appealed to the Federal Supreme Court.
Considerations
The Federal Supreme Court had to examine whether the agreed bonus should be qualified as a gratuity pursuant to Art. 322d CO or as a salary component pursuant to Art. 322 CO. A gratuity is characterized by the fact that it is in addition to the salary and depends on the will of the employer. In the present case, the payment of the bonus was at the discretion of the employer, without any specific criteria being set, which is why the bonus is generally to be qualified as a voluntary payment.
Whether such a voluntary remuneration constitutes a gratuity or a salary component depends on the amount of the total income. If the employee's total income exceeds five times the Swiss median wage, the…