Facts
[A.], born in 1968, received daily allowances from the unemployment insurance from August 1, 2016 to July 31, 2018. Since July 4, 2017, she had been employed as a temporary on-call worker at B. AG. The unemployment insurance office counted this employment as interim earnings against the daily allowance payments. On August 20, 2018, [A.] applied for the continuation of unemployment compensation in a follow-up benefit period from August 1, 2018. The unemployment insurance office denied a claim for unemployment compensation due to the lack of creditable loss of work. The Administrative Court of the Canton of Bern upheld the appeal and affirmed a creditable loss of work.
The unemployment insurance office filed an appeal in public law matters with the request to set aside the contested decision and to confirm the objection decision of the unemployment insurance office.
Considerations
The Federal Court states that in the case of an on-call employment relationship that was entered into not voluntarily, but to bridge unemployment after the loss of a full-time job, according to consistent case law, it must be assumed that this is a makeshift interim solution. As long as the makeshift, provisional nature predominates, the creditable loss of work can be affirmed. However, if the on-call employment relationship becomes a permanent solution, this is fundamentally foreign to the unemployment insurance law system from a legal perspective.
The Federal Court specifies that the approach of affirming the creditable loss of work in the case of an on-call employment with a bridging character based on the previously held permanent employment relationship is, from a legal systematic point of view and under the aspect of the principle of equal treatment of the insured, to be limited to the…