Facts
The plaintiff Silvia B. was employed as a catering manager by the defendant N. P. AG from 1987 to 1989. According to her employment contract, she was entitled to 28 vacation days per year, and she was usually to be represented by an assistant. In exceptional cases, a temporary worker could be used as a replacement, whose remuneration was also to be deducted from the 25% of the beverage turnover that made up the plaintiff's salary. The plaintiff claimed that this regulation violated the mandatory requirement for continued wage payment during vacation under Art. 329d CO and was therefore null and void. The District Court partially upheld her claim, while the High Court dismissed it. The plaintiff then successfully appealed to the Federal Supreme Court.Considerations
The Federal Supreme Court states that the prohibition on compensation under Art. 329d CO is intended to ensure that vacations serve the purpose of rest and relaxation and are not compensated by monetary payments. The case law allows an exception only if it is clearly apparent to the employee which part of the salary is intended to compensate the vacation entitlement. However, the agreement in the present case, under which the…