Facts
Mr. A worked as a server for Company X. On December 10, 1996, Company X terminated the employment contract with effect from February 28, 1997. Mr. A was completely incapable of working due to illness from December 12, 1996 to May 26, 1997, and then from May 26 to June 30, 1997 due to a surgical intervention.
On September 2, 1997, Mr. A sued Company X for payment of 12,666.65 CHF, of which 12,000 CHF was for salary for the months of June, July and August 1997. Unemployment Insurance Fund Y intervened in the proceedings to claim payment of 8,307.80 CHF.
The Labor Court of the Canton of Geneva ordered Company X to pay the intervening party the gross sum of 8,000 CHF. The Labor Court of Appeal confirmed this judgment.
Company X appealed the decision to the Federal Tribunal.
Considerations
According to Art. 336c CO, after the probationary period, the employer cannot terminate the employment contract during a total or partial incapacity to work resulting from illness or accident. If the notice of termination was given before this period of protection and the notice period had not expired before, this period is suspended and only continues to run after the end of the period.
The Federal Tribunal has made a distinction depending on whether the new incapacity to work occurs still within the extended notice period or only during the additional time period until the next term. A suspension of the notice period is only justified in the first case.
Although this case law has been criticized by some authors, the Federal Tribunal has decided not to revisit it. Indeed, paragraphs 2 and 3 of…