Transfer of employment relationships in the event of a company split and joint liability for claims arising from a social plan

Facts

In 1998, Swissair changed its corporate name to become SAirGroup. From the early 1990s, Swissair and then SAirGroup gradually refocused their activities on the Zurich platform and reduced the number of their intercontinental flights. They also divested various services to subsidiaries, including the technical service, which was taken over on January 1, 1997 by the subsidiary Swissair Technical Services SA, registered in the Commercial Register of Zurich on August 16, 1996. This subsidiary then changed its corporate name to become SR Technics SA, then SR Technics Switzerland (the defendant).

To mitigate the consequences of the necessary layoffs, Swissair and then SAirGroup developed, together with the trade unions concerned, several successive social plans, one of which, adopted in 1995, provided for early retirement and a pre-retirement status.

A. worked full-time for Swissair since June 1, 1963 as an employee of the technical service. By letter dated September 24, 1996, on Swissair Technical Services SA letterhead, A. was informed that he would be retired early on October 1, 1997 and would receive the corresponding benefits.

From the takeover of Swissair's technical services by its subsidiary Swissair Technical Services SA on January 1, 1997, A. worked for the latter. However, Swissair continued to keep the general accounts in which each subsidiary was identified by a ch.. A. ceased working on September 30, 1997 and regularly received the promised benefits until September 2001.

In November 2001, the SAirGroup Pension Fund informed A. that it would pay him his retirement pension early, as of November 30, 2001, due to the composition moratorium procedure affecting SAirGroup. A. opted for the retirement lump sum.

A. claimed from SR Technics the full amount of the unpaid benefits. On January 24, 2002, he filed a claim for 70,673 CHF with the composition administrator of SAirGroup. On December 4, 2001, A. sued SR Technics before the Geneva Labor Court to obtain payment of 72,661.30 CHF, plus interest.

Considerations

The central issue is whether the defendant is liable to the plaintiff for the claims arising from the social plan developed by Swissair.

First, Art. 333 CO applies in this case, as the transfer of Swissair's technical business to its subsidiary falls under this provision, which governs the fate of employment relationships in the event of a transfer of…