Facts

The [A. GmbH] , a painting and plastering business based in Bern, applied for short-time work compensation for its employees due to the Covid-19 pandemic. The company is part of a group of companies in which [C.] is a partner and managing director with sole signing authority. The [B. GmbH] (now in liquidation) had previously submitted a similar application, which was rejected by judgment 8C_141/2023 of 2 May 2023.

The [A. GmbH] filed an application for short-time work compensation as of 1 March 2021 on 21 February 2021. The Unemployment Insurance Office (AVA) of the Canton of Bern approved this for the period from 5 March to 4 September 2021 subject to the fulfilment of further eligibility requirements. A further application for the period from 1 September 2021 to 28 February 2022 was partially rejected: compensation was approved for the period from 5 September to 31 December 2021 subject to the fulfilment of eligibility requirements and excluding seasonal fluctuations. A third application was submitted for the period from 1 April to 30 September 2022.

Following further investigations, the AVA revoked its original decisions with reconsideration decisions of 28 April 2022 and 2 May 2022 and rejected the payment of short-time work compensation for the periods from 1 July to 31 December 2021 and from 1 April 2022 onwards. The AVA’s decision on appeal of 2 August 2022 confirmed this stance. The [A. GmbH] then filed an appeal with the Administrative Court of the Canton of Bern, which dismissed the appeal by judgment of 6 February 2023.

The [A. GmbH] subsequently filed an appeal in public law matters with the Federal Supreme Court and requested that the cantonal judgment be set aside and the matter be referred back for reassessment, in particular for the period from 1 July to 31 December 2021. In the alternative, it requested that short-time work compensation be granted for this period.

Considerations

The Federal Supreme Court first examined the admissibility of the appeal and found that the lower court had correctly established the facts and that there were no obvious violations of the law. The appeal focused on whether the lower court had violated federal law by denying a compensable loss of work for the period from July to December 2021 and classifying it as normal business risk.

The lower court had correctly applied the eligibility requirements for short-time work compensation under Art. 31 para. 1 UIA and the criteria for compensable loss of work under Art. 31 para. 1 lit. b and d, Art. 32 para. 1 lit. a UIA and the special provisions for hardship cases under Art. 32 para. 3 UIA in conjunction with Art. 51 para. 1 UIO. It also took into account the case law on normal business risk and the requirements for reconsideration under Art. 53 para. 2 GSSLA.

The Federal Supreme Court emphasised that short-time work compensation is not intended to secure the company’s existence or cover revenue shortfalls, but rather to preserve jobs by preventing dismissals due to temporary reductions in work. Losses of work due to the Covid-19 pandemic or official measures may be considered extraordinary circumstances if credibly demonstrated. However, the lower court found that the [A. GmbH] …