Facts
In this case, an employee (B.) filed a lawsuit against his employer (A.). The employee demanded that the employer pay him a variable salary for the year 2017 and for January 2018. Additionally, the employee requested that the employer grant him or a court-appointed expert access to the business records.
The District Court ordered the employer to pay the employee the bonus for 2017, but dismissed the claim for January 2018 as moot. The employer appealed this decision to the Cantonal Court, which partially upheld the appeal and reduced the bonus for 2017. However, the Cantonal Court did not enter into the appeal against the dismissal for January 2018, as the correct legal remedy would have been a complaint.
Considerations
The Federal Supreme Court now had to clarify which legal remedy can be used to challenge the dismissal due to mootness under Art. 242 of the Swiss Civil Procedure Code (CPC). In the literature, this is disputed, as some authors consider the dismissal to be a sui generis procedural decision that can only be challenged by a complaint, while others qualify it as a final decision that is generally subject to an appeal.
The Federal Supreme Court decided that the dismissal due to mootness under…