Facts

In this case, there was a dispute between X. AG (plaintiff) and Y. (defendant) regarding the non-compete clause claim after the termination of the employment relationship. The defendant was employed as a chief chemist at the plaintiff's company and terminated the employment relationship, as he felt impaired by restructuring and unequal treatment in salary increases in his area of work. He invoked Article 340c(2) of the Swiss Code of Obligations (OR), according to which the non-compete obligation lapses if the employee terminates the employment relationship for a justified reason attributable to the employer.

The High Court refused to apply this provision, as it found the defendant's allegations to be incorrect. The defendant subsequently maintained only two reasons: insufficient salary increases compared to other employees and his dismissal as head of the laboratory without prior consultation with him.

Considerations

The Federal Supreme Court reached the following conclusion

  • The defendant had the right to invoke a ground for termination within the meaning of Article 340c(2) OR, even if he had not immediately terminated the employment. As a rule, the employee does not forfeit this right by a delayed termination.
  • The dismissal of the defendant as head of the laboratory without prior consultation with him did violate Article 328(1) OR (protection of the employee's personality), but did not constitute a justified ground for termination within the meaning of Article 340c(2) OR.…