Right to insolvency compensation when the employment relationship is terminated before the opening of bankruptcy

Facts

Helene R. has worked as a commercial employee at S. in St. Gallen since January 1, 1986. Her employer terminated the employment contract "due to bankruptcy" with effect at the end of April 1986 and undertook to pay the salaries for March and April 1986 "as soon as possible". In July 1986, Helene R. requested the payment of insolvency compensation for the salaries of March and April 1986. The cantonal unemployment insurance fund of St. Gallen rejected this request on the grounds that the employer was not in bankruptcy. The insurance court of the canton of St. Gallen confirmed this rejection, considering that the insolvency compensation could not cover the wage claims prior to July 15, 1986, the date of the opening of the bankruptcy.

Considerations

According to Art. 52 para. 1 UIA, the insolvency compensation covers the wage claims for the last three months of the employment relationship before the opening of the bankruptcy or the request for seizure. Contrary to the opinion of the previous instances, this provision must be interpreted as referring to the last three months of the employment relationship, and not the three calendar months preceding the opening of the bankruptcy or the request for seizure. This interpretation is in line with the objective of protecting the worker's wage claims in the event of the employer's insolvency.

When the opening of the bankruptcy or the request for seizure occurs after the end of the employment relationship, the right to compensation is subject to the condition that the employer was already insolvent at the time of the termination of the contract and…