Facts
The dispute opposes A., an employee, to X. AG, his former employer. A. worked for X. AG from October 1, 1977 to December 31, 1997, first on the basis of a verbal employment contract, then from December 18, 1996, on the basis of a written fixed-term contract of one year. The contract provided for an hourly wage of 29.55 Swiss francs gross, as well as a vacation and public holiday allowance of 11.5%.
On February 9, 1998, A. claimed from X. AG the payment of a vacation and public holiday allowance for the period from January 1993 to December 1997, as well as for excessive contributions for unemployment insurance, for a total of 53,878.05 Swiss francs.
The court of first instance rejected A.'s claim, but the cantonal court condemned X. AG to pay 35,828 Swiss francs with interest. X. AG appealed to the Federal Court.
Considerations
3. The right to vacation and its payment
The Federal Act on the Contract of Employment (CO) provides that the employee is entitled to a salary for vacations (art. 329d para. 1 CO). The Federal Court has ruled that the employee must not be treated less favorably during vacations than if he were working (ATF 118 II 136, consid. 3b). However, in cases of irregular work, it may be difficult to calculate the salary for vacations.
3.2 The possibility of waiving vacation pay
The Federal Court has admitted the possibility of waiving vacation pay in cases of irregular work, provided that the parties have concluded a written agreement and that the employee can verify the amount of vacation pay on his pay slips (ATF 118 II 136, consid. 3b). However, in the present case, the…