Facts
The present case concerns the question of how to determine the insured earnings for the receipt of unemployment compensation when the spouse works in the other's business. The lower instance had set the insured earnings at 5,000 Swiss francs, while the supervisory authority was of the opinion that the minimum amount of 500 Swiss francs per month over the assessment period was not reached and therefore there was no entitlement to unemployment compensation.
In fact, the complainant had worked in her husband's bakery business from July 1, 1998 to August 31, 1999, with a wage of 2,500 Swiss francs agreed until December 31, 1998 and 5,000 Swiss francs from January 1, 1999 onwards. However, only 1,737.60 Swiss francs in wages were actually paid during the entire employment period.
Considerations
The Federal Court notes that, in principle, the actual wages received should be used to determine the insured earnings. Only in exceptional cases, where abuse through the agreement of fictitious wages can be practically excluded, may the wage agreement between employer and employee be relied upon.
In the present case, the Federal Court sees a risk of abuse, as apart from two minor payments, no wages had been paid effectively since the beginning of the employment…