Facts

The complainant, born in 1971, had been employed by [B. GmbH] since November 2011, in an indefinite employment relationship from April 2013. From 21 May 2019 until the end of May 2021, he was completely unable to work due to an accident and illness. The Swiss Accident Insurance Fund (Suva) and later Allianz Suisse Versicherungs-Gesellschaft AG paid daily allowances for this period. The employer terminated the employment relationship as of the end of January 2020, effective after the statutory waiting period of 180 days (Art. 336c para. 1 lit. b CO). From June 2021, the complainant was 20 % able to work. On 25 March 2021, he registered with the employment agency and claimed unemployment compensation. The Unia unemployment fund opened a reference period for benefit entitlement as of 1 June 2021 and paid 90 daily allowances as an advance payment to the disability insurance. With a decision dated 11 January 2022, the claim was limited to 90 daily allowances, as the complainant could only prove nine months of gainful employment subject to contributions within the reference period. The appeal against this decision was dismissed by the appeal decision of 15 March 2022. The Cantonal Court of Basel-Landschaft dismissed the complainant’s appeal with a judgment dated 17 November 2022. The complainant now requests before the Federal Supreme Court that 400 daily allowances be awarded for the reference period from 1 June 2021 to 31 May 2023, with the daily allowances already paid to be credited.

Considerations

The Federal Supreme Court examines the appeal for legal violations pursuant to Art. 95 and 96 FSCA. It applies the law ex officio (Art. 106 para. 1 FSCA), but limits itself to the submissions made, unless there are obvious legal deficiencies (BGE 138 I 274 para. 1.6). The facts are based on the findings of the lower court (Art. 105 para. 1 FSCA).

Subject of dispute and standard of review: The appeal concerns the question of whether the complainant met the contribution period for entitlement to unemployment compensation (Art. 8 para. 1 lit. e UIA in conjunction with Art. 13 UIA). The contribution period requires at least twelve months of gainful employment subject to contributions within the reference period (Art. 13 para. 1 UIA). Periods during which the insured person does not receive wages and does not pay contributions due to illness CO accident may be credited pursuant to Art. 13 para. 2 lit. c UIA, provided that an employment relationship exists. Pursuant to Art. 14 para. 1 lit. b UIA, a person is exempt from fulfilling the contribution period if, within the reference period, they were not in an employment relationship for more than twelve months and could not fulfil the contribution period for health reasons.

Application of the statutory provisions: The lower court found that the complainant did not work in gainful employment subject to contributions for twelve months within the reference period for the contribution period (1 June 2019 to 31 May 2021). Moreover, from 21 May 2019 until the end of May 2021, he was completely unable to work and received daily allowances from accident and health insurance. The lower court concluded that the complainant was exempt from fulfilling the contribution period pursuant to Art. 14 para. 1 lit. b UIA, as he had not been in an employment relationship for more than twelve months. The Unia was therefore correct to pay 90 daily allowances pursuant to Art. 27 para. 4 UIA.

Interpretation of Art. 13 para. 2 lit. c UIA: The complainant argues that the lower court incorrectly applied the wording of…