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…