Facts
The respondent, born 1975, registered on 12 September 2017 with the regional placement office Zürich Hardturmstrasse (AOO) for placement in a full-time position. By letter of 15 September 2017, the AOO requested that he provide proof of his personal job search efforts for the period from 1 June to 12 September 2017 by 20 September 2017. The form was only received by the AOO on 25 September 2017.
By decision of 28 September 2017 and decision on objection of 16 November 2017, the Office for Economy and Labour of the Canton of Zürich (AWA) suspended the respondent's entitlement for 13 days from 12 September 2017.
The Social Insurance Court of the Canton of Zürich partially upheld the appeal by decision of 17 December 2018 and reduced the suspension period to 2.1 days. It assumed that a suspension of 5 days was in principle appropriate (SECO suspension grid, item D79, 1.E no. 1, 5 to 9 days), but took into account the very short deadline, the merely marginal delay and the intermediate earnings of CHF 2,572 achieved in September 2017 against an insured earnings of CHF 4,450, which resulted in a contribution share of approximately 42%.
The AWA filed an appeal under public law with the request that the lower court's decision be set aside and the decision on objection be confirmed. It argues that, as a matter of practice, a short grace period is to be set where job search efforts are not submitted at registration, and that if this is not met, sanctions should be imposed under item D79, 1.B (no job search efforts during the notice period, 12 to 18 days). The State Secretariat for Economic Affairs (SECO) and the respondent waived submission of a response.
The question in dispute is whether the lower court's reduction of the suspension to 2.1 days is consistent with federal law.
Considerations
The Federal Supreme Court applies the law ex officio (Art. 106 para. 1 FSCA) and examines in principle only the complaints raised, unless the legal defects are obvious (Art. 42 paras. 1 and 2 FSCA). Under Art. 17 para. 2 UIA and Art. 20 para. 1 lit. d UIO, the insured person must provide proof of their job search efforts at registration; the duty to make sufficient efforts begins already with notice of termination. Under Art. 30 para. 1 lit. d UIA, a suspension is provided for failure to comply with control rules or instructions; this provision has the function of a residual offence.
Art. 26 para. 2 UIO, under which late-submitted job search efforts are not taken into account, according to its clear wording concerns the proof for each control period and not the proof to be provided at registration. Whether the second sentence applies by analogy can remain open, as this yields nothing concrete for the duration of the suspension.
Pursuant to Art. 45 para. 3 UIO, the suspension lasts 1 to 15 days in case of slight fault. The administrative directives of SECO (UIA practice ALE) are not binding on the court, but are to be considered insofar as they constitute a convincing concretisation of the statutory requirements. The duration depends solely on the gravity of the fault based on the overall conduct; the determination is a question of discretion that can only be corrected in case of exceeding or falling short of discretion or abuse of discretion.
Placing the duration of suspension at the lowest end of slight fault does not violate federal law. Nor is there any misapplication of the suspension grid: the category for job search efforts submitted…