Facts
Marcel [W.], who had been employed as a city bus driver at H. Transport AG since December 1, 1989, was elected to the company's works council on December 14, 1989 and as chairman of the VPOD (Swiss Federation of Public Service Employees) group for city buses [F.] on November 27, 1990. After disputes over the working hours of the drivers, the VPOD filed a complaint with the Federal Office of Transport on December 7, 1990 and held a press conference on December 13, in which [W.] also participated.
The employer suspended [W.] from duty with immediate effect on January 14, 1991 and terminated his employment on January 29 effective the end of April. [W.] objected to the dismissal and filed a claim with the District Court [F.] on June 12, 1991 for payment of CHF 28,087 in compensation for abusive dismissal.
The District Court affirmed the abusiveness and upheld the claim to the extent of two monthly salaries. On the cantonal appeals of both parties, the Thurgau High Court increased the compensation to four monthly salaries or CHF 18,111.
Both parties are challenging the High Court's judgment with a federal appeal. The plaintiff is demanding an increase in compensation to CHF 26,979 plus interest, corresponding to the maximum compensation of six monthly salaries.
Considerations
The Federal Supreme Court holds that the discretion granted to the judge in determining the compensation under Art. 336a CO is only limited to the extent that the compensation may not exceed six monthly salaries. The compensation must be decided primarily based on the severity of the employer's…