Facts

The dispute concerns the nature and legal scope of the relationship between C. and B. SA between 1954, when the company was established, and June 30, 1990. Substituting the lawsuit initiated on September 6, 1990 by her late husband, A. asserts the existence of an employment contract terminated on June 30, 1990, following the notice given on March 13, 1990. The defendant, however, traces the beginning of the employment relationship back to 1974 - as the plaintiff's husband was previously the sole director and sole shareholder of the company - and contests its duration.

The Pretore partially upheld the petition and ordered B. SA to pay CHF 15,000 in salary until June 30, 1990 and CHF 40,000 as a termination indemnity under Art. 339b CO. Appealed by the losing party, the 2nd Civil Chamber of the Ticino Cantonal Court of Appeal overturned the first instance judgment and dismissed the petition in its entirety.

Against this decision, A. appealed to the Federal Tribunal for a review. Partially upholding the appeal, the Federal Tribunal remanded the case to the cantonal authority to determine the salary due for the months of April-June 1990. However, the cantonal judgment was confirmed with regard to the rejection of the request for a termination indemnity under Art. 339b CO.

Considerations

The Federal Tribunal confirmed the cantonal decision to reject the request for a termination indemnity under Art. 339b CO. The Ticino judges denied this claim due to the insufficient duration of the employment relationship, which began at the earliest in 1974; until that year, the existence of an employment contract was impossible due to the position of the plaintiff's husband within the company, of which he was the sole director and sole shareholder.

This conclusion appears fully in line with federal law. The classification of the legal position of members of the board of directors of a public limited company is indeed controversial, but it is not possible, in any case, to admit an employment relationship when there is an economic identity between the legal person and the person who acts as its governing body; here, in fact, one of the essential and indispensable characteristics of the employment…