Facts
The insured M. had been employed as the Head of Administration for a gardening cooperative since 1996. After the termination of the employment relationship in November 2000, he received unemployment benefits. However, the Office for Economy and Labour (AWA) retrospectively denied the claim for unemployment compensation from December 2000 onwards, as M. had held an employer-like position within a corporate conglomerate. The cantonal court overturned the decision for the period from January 2003 to January 2004, as the AWA had violated its duty to clarify the facts. The Federal Supreme Court overturns the cantonal decision and dismisses M.'s appeal.Considerations
The Federal Supreme Court states that at the time of the entry into force of the GSSLA on 1 January 2003, the AWA had no knowledge of the insured's employer-like position. It was only during the course of 2003 that there were indications that M. held an influential management position within a corporate conglomerate. Until then, the AWA had no reason to question the entitlement to benefits or to conduct further investigations. The duty to clarify the facts according to Art. 27 GSSLA only applies to the insurance carrier when it can recognize, with average diligence, that the situation of the insured person jeopardizes the entitlement to benefits. This was not the case until January 2004 in the present case.
The Federal Supreme Court notes that, in…