Facts
The plaintiff, X., had been employed as a heating technician at the defendant, A. AG, since 1958. He had intended to retire at the end of May 2003 after 45 years of service, 4 months before reaching the AHV retirement age. However, shortly before the end of his employment, he was dismissed with immediate effect as of July 31, 2002 by letter dated April 25, 2002. The defendant justified the dismissal by stating that the plaintiff had a constantly negative attitude towards new projects, which was very demotivating for the superiors and employees. Furthermore, the plaintiff had not implemented the requirements for recording productive hours.
The plaintiff did not accept the dismissal and demanded compensation from the defendant for abusive dismissal. While the court of first instance affirmed the abusiveness, the Court of Appeal of the Canton of Bern considered the dismissal to be justified, as the poor relationship between the plaintiff and a superior had been the decisive factor. The plaintiff had not been able to prove that his age was the reason for the dismissal.
Considerations
The Federal Supreme Court overturned the judgment of the lower court and awarded the plaintiff compensation of six months' salary.
The Federal Supreme Court stated that the defendant had violated its duty of care under Art. 328 para. 1 CO by dismissing the plaintiff without prior efforts to resolve the conflict with the superior. The plaintiff's criticism of the productivity enhancement measures,…