Facts

The [X. AG] (appellant) and [K.] (appellee) were connected by an employment contract. The appellee had been working for the appellant since 1988, most recently as a machinist. After an accident under the influence of alcohol in 2007, the parties signed an agreement in which the appellee placed himself under medical supervision and waived alcohol consumption. If this agreement was not complied with, the employment relationship was to be terminated without notice. In August 2008, the appellant terminated the employment contract without notice because the appellee had consumed alcohol again and had not complied with the agreement.

The appellee filed a lawsuit with the Labor Court of the Canton of Lucerne and demanded compensation for the salary until the end of the ordinary notice period as well as compensation for the unjustified dismissal. The appellant requested the dismissal of the lawsuit and made an alternative application that the claim had lapsed due to set-off with a damage claim.

The Labor Court found that the termination without notice was unjustified and approved the claim in the amount of CHF 24,997.30 net. However, it dismissed the lawsuit because it recognized the damage claim set off by the appellant.

The Higher Court of the Canton of Lucerne overturned the judgment of the Labor Court and obliged the appellant to pay the appellee CHF 24,997.30 net. It assumed that the appellant had implicitly waived the damage claim.

Considerations

The Federal Court had to decide whether the appellant had waived the damage claim. The appellant had reserved damage claims in the agreement of January 30, 2007, and in the termination without notice of August 8, 2008. However, it had not set off a damage claim in the last payroll statement of August 14, 2008, and had also not renewed the general reservation.

The Federal Court found that the lower court had rightly assumed that the appellant had implicitly waived the damage claim. The appellant had not set off a damage claim in the last payroll statement and had also not renewed the general reservation, despite the explicit reservations in the agreement and the termination without notice.

The Federal Court also rejected the appellant's complaint…