Facts
H. worked as a fire protection installer at C. since 1 March 1985 based on an orally concluded contract. After the termination of the employment contract in June 1987 due to disagreements, H. filed a complaint in September of the same year with the cantonal court of Nidwald, claiming payment of CHF 12,420.80, later reduced to CHF 5,992.90 for unpaid holiday pay.
The cantonal court awarded H. CHF 5,447.60 plus 5% interest from 23 June 1987. C. appealed to the higher court of the canton of Nidwald, which dismissed the claim on 29 March 1990. H. then filed a public law appeal against this decision for violation of Art. 4 Cst., requesting the annulment of the decision and the referral of the case to the higher court to uphold his claim.
Considerations
According to Art. 329d CO, the employer must pay the employee the full salary for the holidays and an appropriate allowance for the loss of benefits in kind (para. 1). Holidays cannot be compensated by cash benefits or other advantages during the employment contract (para. 2). This prohibition on compensation is part of the absolute mandatory provisions, while the provisions on holiday pay are relatively mandatory (Arts. 361 and 362 CO).
The case law exceptionally accepts the validity of agreements on the compensation of holidays by cash benefits, but on the condition that the amount or percentage of the holiday allowance is clearly stated in the contract and the pay slips. The mere agreement that the holiday allowance is…