Facts
[A. AG] (the appellant) aims to provide services in the field of personnel consulting and placement of permanent and temporary positions. On 2 August 2006, the parties concluded an open-ended employment contract, under which [B.] (the respondent) was employed as a personnel consultant at the Bern branch. The contract contained a non-compete clause for the duration of the employment and two years thereafter, as well as a contractual penalty of CHF 25,000 in case of violation of the non-compete clause. On 2 October 2012, [B.] terminated his employment effective 31 March 2014. [A. AG] then terminated the employment relationship with the contractual notice period of two months, effective 31 December 2012, and released [B.] from work with immediate effect. On 25 February 2013, [C. AG] , where [B.] subsequently worked, was registered in the Commercial Register. [A. AG] applied to the Regional Court of Bern-Mittelland for interim measures to prohibit [B.] from working for [C. AG] and from placing personnel in certain industries in Switzerland. The Regional Court and the High Court of the Canton of Bern dismissed the application.Considerations
The DFC concluded that the non-compete clause between the parties was generally validly agreed upon and is binding. However, the lower instance had wrongly assumed that the non-compete clause had lapsed because [A. AG] had terminated the employment relationship without [B.] having given it justified reason to do so (Art. 340c para. 2 CO). The DFC considered it arbitrary that the lower…