Crediting the Salary Earned at a New Position during the Release from Work

Facts

G., an employee of P. AG, terminated his employment contract on August 31, 1989. On the same day, P. AG released him from his work obligations with immediate effect. According to the employment contract, the employment relationship thus ended on February 28, 1990. On October 1, 1989, G. started a new position, where he earned a lower salary than at P. AG. G. claimed the full salary payment from P. AG.

In a lawsuit filed on January 29, 1990, G. requested that P. AG be ordered to pay CHF 16,840.65 plus interest. The High Court of the Canton of Schaffhausen dismissed the claim beyond the recognized and paid claim of CHF 429.35.

Considerations

The Federal Supreme Court decided that the employee released from work must have the salary earned at the new position credited against the salary to be paid by the former employer. Although the release from work is neither default of acceptance nor unjustified summary dismissal, an analogous application of Art. 337c para. 2 of the Swiss Code of Obligations (CO) is justified.

Both in the case of unjustified summary dismissal and in the case of release from work, the employer wants to keep the employee away from the workplace with immediate effect. The unjustly summarily dismissed…