Facts

Parties and subject of proceedings: The appellant is an intercommunal public-law institution (employer). The respondent had been employed by it since 1990, most recently as 'Head of Corporate Projects'. The subject of the dispute is a claim for compensation arising from a termination agreement under public service employment law. The lower instance was the Administrative Court of the Canton of Zurich (decision of 5 December 2018, VB.2018.00368).

Chronology:

  • 26 June 2017: The employer terminates the employment relationship with effect from the end of December 2017.
  • 29 June 2017: A termination agreement is concluded. The employee receives the right to early termination with a seven-day notice period to the end of a month. The employer undertakes, 'in view of the age and years of service' of the employee, to pay compensation of CHF 75'000.-, which is also intended to cover any remaining balance of holiday and overtime credits.
  • 9 August 2017: The employer accuses the employee of having copied a large quantity of protected or trade-secret data onto a private USB stick, which it considers a serious breach of the duty of loyalty. It examines summary dismissal, revocation of the agreement and a criminal complaint.
  • 16 August 2017: After the employee has been granted the right to be heard, he is released from duty with immediate effect.
  • 11 September 2017: The employee declares early termination with effect from the end of October 2017.
  • 26 September 2017: The employer issues a ruling that it declares the obligation to pay compensation non-binding on grounds of mistake and revokes it.

Lower instances: The District Council of Dietikon dismissed the appeal (Rekurs) on 15 May 2018. On appeal, the Administrative Court annulled the District Council's decision and the ruling, thereby effectively ordering payment of the compensation.

Applications before the Federal Supreme Court: The employer applies for the annulment of the administrative court's decision and, in substance, the reinstatement of its ruling. The employee applies for dismissal of the appeal.

Legal framework: The institution has issued its own staff regulations. Subsidiarily, the cantonal PostSA/ZH applies. The termination agreement is to be classified as an administrative law contract to which Art. 23 ff. CO apply by analogy, as subsidiary cantonal law.

Considerations

Admissibility: The appeal in public law matters is admissible. It concerns a final decision of a last cantonal instance (Art. 90, Art. 86 para. 1 lit. d FSCA) in a public law employment dispute (Art. 82 lit. a FSCA). The exclusion ground of Art. 83 lit. g FSCA does not apply, as the matter concerns a pecuniary claim exceeding CHF 15'000.-. The employer has standing under Art. 89 para. 1 FSCA.

Standard of review: Cantonal law is reviewed freely only insofar as it infringes federal law or international law; otherwise, only arbitrariness (Art. 9 Cst.) may be complained of. Fundamental rights and cantonal law are subject to the qualified duty to plead (Art. 106 para. 2 FSCA). The facts may be corrected only in cases of arbitrariness (Art. 105 FSCA). The Federal Supreme Court annuls a decision only if both the reasoning and the result are untenable.

No finding of fact on the data theft: The lower instance left open whether the employee actually copied the data. The corresponding assertions in the appeal are mere assertions by a party. A violation of federal law through the failure to conduct taking of evidence is not substantiated.

Mistake as to the basis of the contract (Art. 24 para. 1 no. 4 CO): The lower instance denied a material mistake, because the notion related to future performance of the contract and the agreement was concluded after the termination in order to avoid a legal dispute. The duty of loyalty already existed from the employment relationship (§§ 49 and 51 PostSA), and under the wording the payment was owed in view of age and years of service. The Federal Supreme Court holds that expectations regarding future benefits or the proven suitability for a function do not form an objectively material basis of the contract (BGE 118 II 297). No arbitrariness is present.

Circumvention of summary dismissal (§ 22 PostSA, Art. 337 CO): The lower instance regarded the invocation of a defect of will as an impermissible circumvention of the personnel law rules. The employer had missed the…