Wage Claims of a Managing Director and Member of the Board of Directors in Bankruptcy

Facts

[H.] was employed as a managing director at [G. AG] from February to August 1986. During this time, he was also a sole signatory member of the company's Board of Directors. When [G. AG] was declared bankrupt, [H.] filed his wage claims for collocation.

The bankruptcy administration classified the claim in the fifth class and asserted set-off claims against [H.] as a member of the Board of Directors and managing director.

The High Court of the Canton of Zurich collocated H.'s claim in a reduced amount in the first class. The bankruptcy estate of [G. AG] then appealed to the Federal Supreme Court.

Considerations

The Federal Supreme Court held that the granting of the wage privilege under Art. 219 para. 4 first class lit. a DEBA (Debt Enforcement and Bankruptcy Act) depends on whether there is an actual subordinate relationship between the employee and the employer. This subordinate relationship is lacking if the employee, as in the present case, is a member of the Board of Directors and the managing director of the company.

The Board of Directors is the supreme executive body of the public limited company and is responsible for the management. As a member of the Board of Directors, the…