No interruption of the limitation period by a group action pursuant to Art. 7 GEA

Facts

The complainant, a nurse, was employed at Hospital X between January 1997 and October 2001. The City of Zurich acknowledged in principle that it had to make wage payments to the nursing staff. The complainant sued the City of Zurich on May 19, 2003, for an amount of CHF 60,000.- to interrupt the limitation period for any potential wage claims. The City of Zurich acknowledged a claim for back pay for the period between May 1998 and October 2001, whereas the claim for the period from January 1997 to April 1998 had expired.

The complainant appealed against this decision, which was rejected by the District Council of Zurich. The Administrative Court of the Canton of Zurich dismissed the complainant's appeal and set the value in dispute of the appeal at less than CHF 15,000.-.

The complainant now requests that the City of Zurich be ordered to pay her back wages also for the period between January 1997 and April 1998, overturning the cantonal court's decision. Furthermore, the respondent should be ordered to pay default interest.

Considerations

The Federal Court had to decide whether the filing of a group action in the sense of Art. 7 GEA interrupts the limitation period for the complainant's claim for back pay. The lower court had considered that the filing of a group action does not interrupt the limitation period, as this action only has an effect between the parties and does not affect the individual claims of the employees.

The Federal Court confirmed this interpretation and stated that the Equal Opportunities Act does not contain a special provision that deviates from this principle. The complainant argued that the Equal Opportunities Act is incomplete in this regard and that this gap should be filled by analogously applying Art. 15 para. 2 IEA. However, the Federal Court pointed out that a gap in the law only exists if a provision proves to be incomplete because it fails to provide any answer to the legal question at issue or provides an answer that must be considered substantively untenable.

The Federal Court concluded that the filing of the…