Facts
On 26 February 1983, the employer Jakob Gunterswiler terminated the employment relationship with his driver Antonio Jacopetta, which had existed since April 1980, effective the end of March 1983. On 12 March 1983, the employee Jacopetta confirmed in writing the termination of the contract as of 30 April 1983 and the receipt of an amount of CHF 4,000.-- as settlement of all claims.
In May 1983, Jacopetta filed a claim for payment of CHF 4,998.80, as he had been ill from 14 March to 25 April 1983 and therefore the notice period and the wage claim should have extended until 30 June 1983. The District Court of Frauenfeld and the High Court of Thurgau dismissed the claim.
Jacopetta then filed a constitutional appeal with the Federal Supreme Court, requesting that the judgment be set aside due to arbitrary assessment of evidence and arbitrary application of the law.
Considerations
The Federal Supreme Court states that the High Court basically acknowledges that the incapacity to work due to illness from 14 March to 25 April 1983 should have made the termination effective on 30 June 1983 instead of 30 April 1983. However, the High Court considered an agreement between the parties to terminate the employment relationship and thus waive the protection against dismissal to be permissible.
The Federal Supreme Court disagrees with this view. It makes it clear that the employee cannot unilaterally waive the protection against dismissal under Art. 336e CO and the associated continued payment of wages during the extended notice…