Waiver of Salary during the Notice Period in the Event of Partial Unemployment

Facts

The dispute opposes the Cantonal Office of Industry, Arts and Crafts and Labour of Zurich (the authority) to Trabucco and the Cantonal Appeals Commission for Unemployment Insurance of Zurich (the appeals commission). The authority refused to grant partial unemployment benefits to Trabucco during his notice period, on the grounds that he had waived his right to salary. The appeals commission annulled this decision, considering that Trabucco could waive his salary without losing his right to partial unemployment benefits. The authority then appealed to the Federal Insurance Court.

Considerations

According to case law, the worker's waiver of his right to salary does not necessarily lead to the loss of the right to partial unemployment benefits, particularly when it is a matter of avoiding the termination of the employment contract in the event of a cyclical downturn in activity or temporary reduction in working time. Such an arrangement may better preserve the interests of the worker and the unemployment insurance than strict compliance with Art. 332 former CO, which would entail the permanent risk of dismissal.

However, the worker cannot arbitrarily waive his right to salary in order to receive partial unemployment benefits. If it is not a matter of avoiding imminent termination of the employment contract and the resulting unemployment, the worker may be required to assert his right to salary with the employer. A worker who has already been dismissed…