Facts
Roman Scheu was the Chairman of the Board of Directors of Z. AG, which was declared bankrupt on July 12, 1983. On August 19, 1983, he filed an application for insolvency compensation with the public unemployment insurance fund of the Canton of Zurich. The unemployment insurance fund and the Appeals Commission for Unemployment Insurance of the Canton of Zurich denied the claim, as according to the Ordinance on Insolvency Compensation (VOI), insolvency compensation may only be paid for claims that are privileged under debt enforcement law. According to the case law of the Federal Supreme Court, claims of members of the board of directors are not privileged.
Considerations
The Federal Insurance Court concluded that the provision of the Ordinance, according to which the fund may only pay insolvency compensation for claims that are privileged under debt enforcement law, is unlawful. The concept of the relevant wage under the Old Age and Survivors' Insurance (AHV) law applies not only to the calculation of unemployment, short-time work and bad weather compensation, but also to insolvency compensation.
Although the court left open whether a member of the board of directors enjoys the protection of the Unemployment Insurance Act (AVIG) for compensation from the specific board of directors activities. In the present case, however, it was found that the appellant was not acting in his capacity as Chairman of the Board of Directors, but like an ordinary employee and had not received a specific board…