Recovery of Bad-Weather Compensation Due to Lack of Operational Working Time Control

Facts

The appellant, [A. AG] , a construction company undertaking building and civil engineering work as well as roofing work with natural stone slabs, received bad-weather compensation from the unemployment fund Unia for its employees totalling CHF 1'029'821.60 for the months of February and March 2014, January to March 2015 and January to March 2016.

Following an operational inspection on 23 August 2016, the State Secretariat for Economic Affairs (SECO) demanded repayment of CHF 776'133.30, corresponding to the entire bad-weather compensation for the years 2014 and 2015. The reasoning was that the bad-weather-related hours of loss could not be verified. For 2016, SECO accepted the monthly sheets as operational working time control and disallowed only individual losses that had been wrongly claimed (decision of 21 September 2016, objection decision of 13 December 2016).

The Federal Administrative Court dismissed the appeal by decision of 7 March 2019 (B-664/2017).

Before the Federal Supreme Court, the appellant requested that it be ordered to repay only CHF 19'754.45, or alternatively that the matter be remitted for supplementary investigation. SECO waived a response. By order of 6 June 2019, the Federal Supreme Court granted suspensive effect to the appeal.

Legal question: Whether the recovery of bad-weather compensation totalling CHF 776'133.30 is based on a manifestly incorrect establishment of the facts or violates federal law.

Considerations

The Federal Supreme Court examines the appeal in public law matters (Art. 82 ff. FSCA) for violations of law under Art. 95 f. FSCA and applies the law ex officio (Art. 106 para. 1 FSCA). It is bound by the facts established by the lower court, unless these are manifestly incorrect or based on a violation of law (Art. 105 FSCA).

Entitlement to bad-weather compensation exists under Art. 42 para. 1 UIA in the case of a countable loss of work under Art. 43 UIA. Under Art. 42 para. 3 in conjunction with Art. 31 para. 3 lit. a UIA, there is no entitlement if the loss of work cannot be determined or the working time cannot be adequately monitored. Art. 46b UIO requires operational working time control, which must be kept continuously on a daily basis and retained for five years. The burden of proof lies with the employer (Art. 47 para. 3 lit. a UIA). Recovery of benefits paid unlawfully is governed by Art. 95 para. 1 UIA in conjunction with Art. 25 GSSLA and presupposes a reconsideration or revision under Art. 53 GSSLA.

The lower court found that the working time records for 2014 and 2015 contained numerous inconsistencies. The subsequently prepared compilation of working hours for the construction site '[B.] ' could not replace the lack of contemporaneous recording of working time. The monthly hour sheets contradicted the actual circumstances, as the electronic records bore bad-weather entries without regard to actual working times or absences. Daily and work reports, vehicle and machine reports, course certificates and medical certificates were not complete. The statement of the labour inspector that operational working time control existed did not alter the lack of reliability.

The appellant's complaint that the lower court had related its acknowledgment of inconsistencies to CHF 346'281.30 instead of approximately…