Facts

The company A. SA dismissed its employee Z. as of 31 December 2018, postponed to 31 January 2019 due to illness. On 27 November 2018, the employee claimed to have sent a letter to her employer opposing the dismissal but did not produce this document during the initial proceedings. On 26 March 2019, she filed a conciliation request with the Geneva cantonal Labour Court, then submitted a claim on 27 June 2019 seeking payment of compensation for abusive dismissal amounting to 37,500 francs (equivalent to 6 months’ salary). The employer requested dismissal of the claim.

During the main hearing on 4 February 2020, the employee explained that she had omitted to produce the letter of 27 November 2018 but offered to do so at that stage, noting that this missive was mentioned in documents filed in the case. The employer did not contest this issue in its response. By judgment of 7 April 2020, the Labour Court dismissed the claim, finding that the letter of 27 November 2018 was inadmissible as the conditions of art. 229 para. 1 CPC were not met. Since the employee had neither alleged nor proven that she had opposed the dismissal before the end of the notice period, she could not claim compensation for abusive dismissal.

On appeal on 13 November 2020, the Geneva Court of Justice quashed this decision and remitted the case to the lower court for further investigation and a new decision. It held that art. 336b para. 1 CO established a time bar whose non-compliance resulted in loss of the right to claim compensation. However, the non-expiry of a right was an implicit fact that needed to be alleged and proven only if contested by the opposing party, which was not the case here. The lower court was therefore required to examine the merits, determine whether the dismissal was abusive and rule on the compensation claim.

The employer sought to appeal this decision to the Federal Supreme Court, but its appeal was declared inadmissible (judgment 4A_4/2021 of 25 January 2021). Ruling again on 1 July 2021, the Labour Court found the dismissal abusive and ordered the employer to pay compensation of 15,000 francs. By judgment on appeal of 11 July 2022, the Court of Justice reduced the amount to 10,000 francs.

The employer filed a civil appeal, requesting the Federal Supreme Court to dismiss the claim in its entirety and uphold the judgment of 7 April 2020. The employee argued that the appeal should be declared inadmissible or, in the alternative, dismissed. A second spontaneous exchange of written submissions addressed the admissibility of a document produced in support of the response, namely the disputed letter of 27 November 2018. The request for suspensive effect filed in support of the appeal was rejected by order of 14 December 2022. The Federal Supreme Court allowed the appeal.

Considerations

The Federal Supreme Court recalls that the proceedings were governed by the principle of party presentation (art. 247 para. 2 TSOA. b no. 2 CPC a contrario), which means that the parties must allege the facts on which they base their claims and produce the evidence relating thereto (art. 55 para. 1 CPC). The judge has only a duty to intervene based on art. 56 CPC and may not base its judgment on facts other than those alleged by the parties (ATF 147 III 463 consid. 4.2.3; ATF 142 III 462 consid. 4.4).

The time limit within which an employee may oppose a dismissal is a time bar (judgments 4A_316/2012, 4A_571/2008). A time bar results in the total extinction of a subjective right following the expiry of the period within which its holder was required to exercise it or perform an act necessary for its exercise (ATF 133 III 6 consid. 5.3.4). It must be taken into account ex officio by the judge, unlike a limitation period, which is only considered if raised by the defendant (art. 142 CO). This distinction is explained by the fact that an obligation that is time-barred still exists to some extent, whereas a right that is barred ceases to exist (judgment 4C.163/1993; GAUCH ET AL., OR AT, no. 3386).

The Federal Supreme Court states that, under the principle of party presentation, the judge cannot dispense the parties from submitting the necessary factual information and relevant evidence, even when acting ex officio (ATF 139 III 278 consid. 4.3; judgment 4P.239/2005 consid. 4.3). Whether the burden of alleging and proving the time bar lies with the claimant depends on the circumstances. For true time bars, the claimant must prove that the time limit was observed, since compliance with this requirement is an essential element of the right (judgments 5C.215/1999, 4A_200/2008). In contrast, for other time limits, the…