Rejection of the Validity of an Arbitration Clause in an Employment Contract

Facts

Y. is 68 years old and has worked for X. SA since 1967. In 2004, a new employment contract was concluded, providing for an arbitration clause according to which all disputes arising from the contract would be finally and exclusively settled by an arbitral tribunal sitting in Bern.

In 2005, X. SA terminated the contract with effect as of January 31, 2006. In 2008, Y. filed an action against X. SA before the Civil Court of the District of Lausanne, claiming payment of overtime and unused vacation. X. SA raised the objection of the court's lack of jurisdiction, invoking the arbitration clause.

The Civil Court, and then the Appeals Chamber of the Cantonal Court, rejected the objection of lack of jurisdiction, considering that the arbitration clause was not enforceable against the worker for claims arising from mandatory legal provisions.

Considerations

According to the case law of the Federal Tribunal, federal law does not in itself prohibit the individual dispute between employer and employee from being submitted to arbitration. However, Art. 5 of the Concordat on Arbitration only allows the arbitration agreement for claims over which the parties can freely dispose.

However, under Art. 341 para. 1 CO, the worker cannot…