Facts

The appellant was employed from 15 June 2015 to 31 May 2017 as Sales Manager and CEO at [B. AG] and subsequently worked for this company until 31 October 2018 within the framework of interim employment. On xx April 2019, bankruptcy proceedings were opened over the company. On 18 April 2019, the appellant applied to the Unemployment Insurance Fund of the Canton of Zurich for insolvency compensation for unpaid wages for the years 2015 to 2016 in the gross amount of CHF 48'094.05. The Unemployment Insurance Fund denied the claim by decision of 19 July 2019 and by decision on objection of 18 November 2019.

The Social Insurance Court of the Canton of Zurich dismissed the appeal by judgment of 30 October 2020 and at the same time denied legal aid through appointment of counsel due to lack of prospects of success. The lower court found that [B. AG] had issued a debt acknowledgment dated 29 March 2019 for wages and expenses of CHF 55'595.95 plus interest. The outstanding wage claims concerned the years 2015 and 2016; for the last four months before the termination of the employment relationship, there were undisputedly no wage claims. Expenses of an expense-related nature are excluded from insolvency compensation, and the lack of collocation in the 1st class in the bankruptcy does not establish an entitlement.

Before the Federal Supreme Court, the appellant requested that the judgment be set aside and that CHF 43'333.35 plus interest be awarded, as well as legal aid. He submitted an indictment of the Public Prosecutor's Office of Zurich - Sihl dated 25 January 2021 and, by submission of 15 February 2021, a new item of evidence. No second exchange of written submissions was conducted.

Considerations

The Federal Supreme Court examines only the legal defects complained of and bases its decision on the facts established by the lower court (Art. 105 para. 1 FSCA). Genuine novas are inadmissible (Art. 99 para. 1 FSCA). The indictment dated 25 January 2021 submitted in the proceedings is a genuine nova and remains disregarded.

The complaint of a violation of the duty to give reasons (Art. 29 para. 2 Cst.) is rejected. The lower court stated the considerations essential to the decision, in particular regarding the temporal limitation under Art. 52 para. 1 UIA. The appellant does not show that the decision could have been appropriately contested.

On the merits, the appellant complains of an incorrect application of Art. 52 para. 1 UIA. He argues that the provision contains a proportional rather than a temporal limitation, so that the employer effectively determines the entitlement by paying the last monthly wages. Decisive, in his view, is only the non-expiry of the claims (Art. 128 No. 3 CO). The Federal Supreme Court maintains the clear wording, according to which wage claims are covered for at most the last four months of the employment relationship. There are no valid grounds for departing from the wording.

The legislative materials, the legislative history and the case law (BGE 114 V 56; judgment C 362/98 of 18 February 2000) confirm the temporal limitation. Insolvency compensation is intended to secure what the employee could expect from a solvent employer in the last four months. After four months without wages, the…