Facts
X. SA, an advertising agency in Geneva, hired E. on 3 February 1997 for an indefinite period. The contract provided for a gross salary of 9,000 francs per month, paid 13 times per year, as well as other benefits such as a company car and health insurance. The working hours were 45 hours per week. The contract stipulated that overtime hours were already included in the salary and that there would be no additional remuneration. E. worked 366 overtime hours in 1997 and 223 hours in 1998, for a total of 589 hours. After the termination of his contract on 31 October 1998, E. sued his employer before the labour court to obtain payment for these overtime hours. The Tribunal and the Court of Appeal dismissed his claims, but the Federal Tribunal annulled the cantonal judgment and upheld E.'s claims.Considerations
The Federal Tribunal first examined whether E. could invoke the EmpA, which provides for a 25% supplement for overtime work, or whether he was excluded from its scope as a senior executive. According to case law, to be considered as exercising a high managerial function within the meaning of the EmpA, the worker must have decision-making power in essential matters and assume corresponding responsibility. However, the Tribunal considered that E. did not have this level of responsibility, in particular due to his lack of budgetary autonomy and social signing authority. He could therefore not be considered a senior executive and could invoke the EmpA.
On the merits, the Federal Tribunal held that Art. 13 EmpA, which provides for the payment of a 25%…