Facts
W. was employed by Z. AG as a calculator. From 1986 onwards, he worked numerous overtime hours, which were indicated on his monthly pay slips. In March 1994, W. requested payment for his overtime hours, the total of which amounted to 852.25 hours by December 1995. In June 1996, the employer decided to reset the overtime account to zero, reproaching W. for having extended his vacation without authorization and criticizing his slowness as the sole cause of the overtime hours. On 18 July 1996, Z. AG terminated W.'s employment contract effective 31 October 1996. On 27 March 1997, W. sued Z. AG for payment of CHF 37,861 as compensation for the overtime hours.
Considerations
According to Art. 321c para. 3 CO, the employer is obliged to remunerate overtime, unless otherwise stipulated in a written agreement, a standard employment contract or a collective bargaining agreement. However, the employee cannot validly waive compensation for overtime already performed, as Art. 321c para. 3 CO is partly mandatory. Although the parties may agree that future overtime will not be remunerated, such a waiver is only valid if it takes one of the forms prescribed by law. In…