Compensation of unused vacation days with time off in case of release from the obligation to work during the notice period

Facts

X. had been working as a caretaker in the retirement home of Y. since January 1992. On October 30, 1997, the employer notified X. of his dismissal effective February 28, 1998. X. subsequently filed a claim against his employer for the payment of compensation. The dispute concerned, in particular, the compensation for unused vacation days and public holidays.

Considerations

The Federal Tribunal ruled that the burden of proof regarding the number of vacation days actually taken lies with the employer who claims the extinction of this claim. When a strict establishment of the facts is not possible or cannot reasonably be required, the judge may proceed to an equitable estimate by analogous application of Art. 42 para. 2 CO.

With regard to the compensation for unused public holidays and leave, the Federal Tribunal considered that the mere fact that the worker performed services on those days is not sufficient to qualify these hours as overtime work within the meaning of Art. 321c CO. The employer must prove that these working hours were necessary for operational reasons and had been ordered or approved by him.

Finally, the…