Facts
A. (Plaintiff) had been employed by B. AG (Defendant) as a test mechanic since October 1, 2001. On April 7, 2003, the Defendant terminated the employment relationship "with regular notice as of June 30, 2003". A., who suffers from a severe smoking allergy, had already filed a lawsuit with the Labor Court of Zurich on February 17, 2003, prior to the termination, demanding the enforcement of a comprehensive smoking ban in all areas of his work environment. After the termination, A. changed his claims and demanded compensation from the Defendant for abusive termination pursuant to Art. 336a CO in the amount of CHF 10,800, corresponding to two monthly salaries.
Considerations
The Federal Supreme Court states that the employer is obliged under Art. 328 para. 1 CO to respect and protect the personal rights of the employee and to duly consider the employee's health. The employer must take the measures necessary for the protection of the life and health of the employees, which are applicable according to the state of the art and appropriate to the circumstances of the business, insofar as they can reasonably be expected of the employer with regard to the individual employment relationship and the nature of the work (Art. 328 para. 2 CO).
The Federal Supreme Court considers that the lower court has misinterpreted the legal situation by assuming that the Defendant had sufficiently fulfilled its duty of care by ordering smoking bans, even though it is established that the Plaintiff, as an allergy…