Facts
X. AG (Plaintiff) operated a large-scale distribution of greeting cards, in which Y. (Defendant) was employed as a field sales representative from September 2000 to the end of August 2001. The parties agreed on a flat-rate expense allowance of CHF 1,000 per month. After the termination of the employment relationship, the Plaintiff asserted various claims against the Defendant, including the allegation that the Defendant had received insufficient expense reimbursement.
The Federal Supreme Court had to assess whether the Defendant had wrongfully asserted his claims for higher expense reimbursement too late and had therefore forfeited them.
Considerations
The Federal Supreme Court concluded that the Defendant did not assert his claims for higher expense reimbursement in an abusive manner. Although the agreed flat-rate compensation is void due to the lack of written form, as it does not cover the average expenses of the traveling salesman, the Defendant can nevertheless subsequently claim the difference between the flat-rate and the actual expenses incurred.
A stricter rule of forfeiture cannot be derived in particular from Art. 327c para. 1 CO. The mere fact that the employee asserts his claims only upon termination of the employment relationship does not in itself constitute an abuse of rights. Rather, special circumstances must arise that make the exercise…