Facts
This case opposes company Z. AG (the employer) to Mr. P. (the employee). The employer dismissed the employee and released him from his obligation to work during the notice period. The employer claims that the employee should have compensated his overtime hours during this release period.
Considerations
According to Art. 321c para. 2 CO, overtime can be compensated by time off of at least equivalent duration, but this requires the agreement of the employee. The employer cannot impose it unilaterally, even after the termination of the employment contract and during the release period.
Some cantonal decisions accept that the employer can order the compensation of overtime during the release period in case of a long-term release. However, the Federal Tribunal considers that restraint must be shown in admitting an abusive refusal by the employee to compensate the hours. When the contract is terminated by the employer, the employee must be able to devote himself to the search for a new job during the notice period, so…