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11 07 101 • KG LU 11 07 101 AI generated

Employee Vacation Payout During Garden Leave

Case Number 11 07 101
Court / Authority
Jurisdiction Switzerland · Canton of Lucerne (CH-LU)
Decision Date
Outcome Partially Allowed
Open official source Entscheidsuche mirror Machine-readable Markdown (.md)

Legislator summary

AI generated

The court addressed whether an employee, immediately placed on garden leave after termination, is entitled to compensation for untaken vacation days occurring during that leave period, considering the statutory prohibition against monetary compensation for vacation during employment. The court reasoned that while the general rule prohibits paying out vacation during the notice period, this must yield to the employee's right, pursuant to Art. 329 para. 3 OR, to take necessary time off for job searching, which takes precedence over taking vacation. Consequently, if the duration of the garden leave remaining after accounting for sickness and allocated vacation days does not "very strongly exceed" the remaining vacation entitlement such that all vacation could not reasonably be taken, the remaining untaken vacation days must be paid out because the employee's right to seek new employment limits the employer's ability to mandate vacation usage during the notice period.

Legislator headnote

AI generated

Art. 329 Abs. 3 OR, Art. 329 OR, Art. 329d Abs. 2 OR, Art. 329c OR, Art. 329d OR; Employee Vacation Payout During Garden Leave: The court reasoned that while the general rule prohibits paying out vacation during the notice period, this must yield to the employee's right, pursuant to Art. 329 para. 3 OR, to take necessary time off for job searching, which takes precedence over taking vacation. Consequently, if the duration of the garden leave remaining after accounting for sickness and allocated vacation days does not "very strongly exceed" the remaining vacation entitlement such that all vacation could not reasonably be taken, the remaining untaken vacation days must be paid out because the employee's right to seek new employment limits the employer's ability to mandate vacation usage during the notice period.

Keywords

AI generated
paid leave termination of employment compensation rules notice period leave on personal grounds right to remain

Cited Legislation

AI generated
Art. 329 Abs. 3 OR
This article concerning the employee's right to time off for job search influenced the decision that job searching takes precedence over holiday taking, justifying the compensation.
Art. 329 OR
16 Leitsatz: · Art. 329 ff.
Art. 329d Abs. 2 OR
The court's reasoning regarding the inadmissibility of compensating holidays with money during the notice period is rooted in this article, which implies the remaining 14 days must be paid out because actual taking was not possible.
Art. 329c OR
Art. 329d OR

Cited Case Law

AI generated
BGE 106 II 152
Employee Vacation Compensation Upon Termination
BGE 128 III 280
BGE 128 III 281
BGE 128 III 283
AI generated
OG 1993 11
Employee Vacation Entitlement Reduced Due to Prolonged Illness; Employer Entitled to Repayment
1C 11 4
Employer's Claim for Negative Hours and Unearned Vacation Repayment Upheld
11 05 177
Employer's Right to Deduct Wages for Over-Taken Vacation Under Collective Bargaining Agreement
A 98 195
Employee Vacation Benefit Taxation Dispute

Key legal questions extracted by Legislator

AI generated
Art. 329d Abs. 2 OR

The court's reasoning regarding the inadmissibility of compensating holidays with money during the notice period is rooted in this article, which implies the remaining 14 days must be paid out because actual taking was not possible.

Art. 329 Abs. 3 OR

This article concerning the employee's right to time off for job search influenced the decision that job searching takes precedence over holiday taking, justifying the compensation.

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Full text

Rechtsprechung Luzern

Instanz: · Obergericht Abteilung: · I. Kammer Rechtsgebiet: · OR (Obligationenrecht) Entscheiddatum: · 30.11.2007 Fallnummer: · 11 07 101 LGVE: · 2008 I Nr. 16 Leitsatz: · Art. 329 ff. OR. Abgeltung von Ferientagen während der Freistellungsdauer des Arbeitnehmers. Rechtskraft: · Diese Entscheidung ist rechtskräftig.