Facts
X. GmbH, a company headquartered in Switzerland, operates a bakery in a camp on the outskirts of Kabul, Afghanistan, and supplies local troops with bread and pastries. A., a baker residing in Germany, concluded an employment contract with X. GmbH on April 1, 2005, in which he agreed to work in the bakery in Kabul. The parties subjected the contract to Swiss law and agreed on Glarus as the place of jurisdiction.
A. filed a claim with the Cantonal Court of Glarus, requesting the payment of EUR 120,401.- plus interest, based on the Swiss Federal Act on Work in Industry, Commerce and Trade (ArG). The Cantonal Court dismissed the claim, as it denied the applicability of the ArG. A. appealed to the High Court of the Canton of Glarus, which affirmed the applicability of the ArG and remanded the case to the Cantonal Court for a new assessment.
X. GmbH filed a civil law appeal with the Federal Supreme Court, requesting the annulment of the High Court's decision and the dismissal of A.'s claim.
Considerations
The Federal Supreme Court upholds the appeal and dismisses A.'s claim. It states that the ArG is neither directly nor indirectly applicable to employees employed abroad through the so-called "reception clause" of Art. 342 para. 2 of the Swiss Code of Obligations (OR).
The Federal Supreme Court justifies this as follows
The ArG defines its scope of application in Art. 1 et seq. ArG and, according to Art. 1 para. 3 ArG, is applicable to employees employed in Switzerland by a foreign-based company, insofar as this is possible under the circumstances. However, the application to employees employed abroad is not…