Facts
Parties and procedural history:
The A. AG, a company engaged in the trade of new and used vehicles as well as an auto repair shop for service and repair work, received short-time work compensation amounting to a total of CHF 407,020.05 for its employees during the Covid-19 pandemic (March 2020 to February 2021). Following an employer inspection by the State Secretariat for Economic Affairs (SECO) on 24 March 2021, the recovery of unduly received insurance benefits in the amount of CHF 256,162.15 was ordered. SECO confirmed this order upon appeal.
The Federal Administrative Court dismissed the company’s complaint against this order with a judgment dated 4 April 2023. A. AG then filed a public law appeal with the Federal Supreme Court, requesting that the short-time work compensation for the months of March 2020 to February 2021 be set at CHF 258,181.70 and the recovery reduced to CHF 98,219.70. In the alternative, it requested that the matter be remitted to the Federal Administrative Court or SECO for reassessment. It also sought suspensive effect for the appeal.
The Federal Administrative Court declined to submit a statement, while SECO requested dismissal of the appeal. By order dated 7 September 2023, the investigating judge granted suspensive effect to the appeal. The Federal Supreme Court ultimately dismissed the appeal.
Core issue: A. AG was unable to provide sufficient working time records for nine employees, which SECO and the Federal Administrative Court deemed to indicate a lack of verifiability of the loss of work. The subsequently submitted time records were classified as insufficiently authentic and therefore not admissible, leading to the recovery of the short-time work compensation.
Considerations
Legal basis and eligibility requirements:
Under Art. 31 para. 1 lit. d UIA, employees are entitled to short-time work compensation if their loss of work is temporary and their jobs can be preserved through short-time work. However, pursuant to Art. 31 para. 3 lit. a UIA, no entitlement exists if the loss of work cannot be determined or the working time is not sufficiently verifiable. Art. 46b para. 1 UIO specifies that operational working time control is required to ensure the verifiability of the loss of work. The employer bears the burden of proof for the existence of such control (cf. Art. 47 para. 3 lit. a UIA in conjunction with Art. 42 para. 3 GSSLA).
Assessment of working time records and evidence:
The Federal Administrative Court concluded that A. AG was unable to provide sufficient working time records for nine employees. The managing director had confirmed in writing during the employer inspection on 24 March 2021 that no working time records existed for these employees. The subsequently submitted time records were deemed insufficiently authentic as they did not meet the requirements of daily continuous recording and did not guarantee their authenticity. The lower court took into account that genuine working time records would have had to be presented on site during the inspection if they had existed. The subsequently submitted records could not remedy this deficiency as their authenticity could not be verified.
No violation of good faith or legitimate expectations:
The appellant argued that the managing director had been under stress and had made an error. It also claimed that SECO had verbally assured it that subsequently submitted records would be considered. The Federal Supreme Court rejected these arguments. There was no sufficient basis for legitimate expectations, as no written or other evidence existed of such an assurance. Moreover, the managing director was not compelled to sign the form presented by the inspectors if she considered the information to be incorrect. The requirements for the evidentiary value of the subsequently submitted documents were therefore not arbitrarily high but corresponded to the statutory…