First some good news: Swiss law protects the “weaker” party (that is, you) in a contractual relationship between the employee and the employer.
Play it safe
This does not, however, mean that employees can be carefree. It’s important to remember you should keep copies of relevant documents for their protection.
Although it may sound elementary, it is extremely to keep a copy of the following documents at home:
- Employment agreement (or contract) and any changes to the agreement;
- Employee handbook;
- Code of conduct (if the employer has one);
- Any other employment rules which apply to the employee.
- Evidence of overtime worked.
Make sure there is a paper trail
If you think you’re about to be fired, put aside any important emails you have exchanged with your employer, so that a) there is a written trace and b) your lawyer gets a full picture of the situation – and not just your side of the story.
However, if you work for a bank or in an industry with trade secrets, beware of the restrictions of banking secrecy and trade secrets. These will play a role concerning what you can keep at home and what you cannot.
Swiss authorities treat violation of banking secrecy and of trade secrets very seriously –their violations constitute criminal offences in Switzerland.
Although data protection rules entitle employees to get a copy of the internal meeting minutes (if any) concerning their termination as well as an entire copy of their file held by their employer, employers usually take their time providing these documents – so having your own set of documents will avoid missing a deadline.
What to do if you have just been fired
In a nutshell, a Swiss employer usually has two ways of terminating employment:
- With the regular notice period mentioned in the law or the longer period mentioned in the employment agreement (‘Ordinary termination’); or
- With immediate effect (‘Immediate termination’).
It is important to understand that if you are asked to leave your office immediately, without returning to your desk, this does not necessarily mean you have been terminated with immediate effect.
If you are asked not to return to work, this means you are relieved from your obligation to come to work. You are allowed to use this time to seek other employment.
Whether you have been terminated under a) or b) above, therefore does not depend on whether you have or have not been relieved from your obligation to work.
The difference between ordinary termination and immediate termination depends on whether your employer is continuing to pay your salary during the notice period or is ending your contract right then and there without any further regular salary.
You are entitled to the following regardless of the type of termination:
- A reference letter mentioning duties during employment, the personality of the employee and the quality of work carried out.
- A Salary certificate from January 1st until the date of termination
- An employer certificate for the unemployment authorities
- Payment of the outstanding days of vacation due under your employment agreement (if you cannot take these days of vacation during your notice period because you are looking for a job);
- Payment of your extra hours (if this is provided for under the employment agreement);
- Pension certificate (which mentions how much contribution has been made to your pension since the beginning of your employment and which allows you to transfer these contributions from the pension institution of your former employer to the institution of your new employer).
These documents are due after the effective date of termination in the employment agreement. You may however request an interim reference letter at any time. This may, however, make your employer suspect that you are exploring new employment opportunities.
Please note that for ordinary termination there is a distinction between the date on which you receive the termination letter – ‘notice of termination’ – and the effective date of termination. The notice period runs from the end of the month during which you effectively received the notice of termination, which is why the date of receipt of the notice of termination is very important.
For example, if you received a notice of termination on June 1st 2019, the notice period of, for example, one month, will only begin to run from June 30th. Therefore, the effective date of termination of the employment will be July 31st 2019.
If the employer posts the termination letter on the June 30th and you do not receive it until the July 2nd , the one month notice period will begin running on July 31st and end on August 31st.
It is very important not to sign the notice of termination – or even a receipt saying you have received it – until and unless you have understood the contents. If you do, you may be waiving your rights to legal entitlements or binding yourself to non-compete clauses that may not even exist in your actual employment agreement.
In the case of ordinary termination, if the notice of termination is received during any of the following “Protection Periods” by the employee, it is deemed invalid:
- Four weeks before or after military service, as long as the military service or civil protection service lasted more than eleven days.
- While the employee was ill due to an illness or accident for which he/she was not responsible. The protection period is 30 consecutive days of illness which occur during the first year of employment, 90 consecutive days of illness which occur between the second and fifth year of employment and 180 consecutive days of illness as of the sixth year of employment.
- During pregnancy or sixteen weeks after the delivery
- While the employee is assisting Swiss federal authorities with assistance abroad – with the consent of an employer.
If any of these events occur during the notice period, the notice period is suspended during the protection period and begins to run again after the protection period.
Contesting an ordinary termination
Under Swiss employment law, it is possible to contest an ordinary termination if one of the conditions of article 336 CO are fulfilled. In basic terms, without going into the detail of each of the conditions, the employee has to prove that the termination was due to one of the following:
- A personality trait unrelated to the job
- The exercise by the employee of a constitutional right that did not violate his/her work obligations,
- The objective of the termination was to prevent the employee from claiming legal entitlements due under the employment agreement
- The employee made a legal claim concerning his/her employment
- The employee joined a union
- The employee was part of a collective termination which did not comply with the legal requirements of this type of termination.
It is not easy to demonstrate these conditions in the absence of written evidence (such as exchange of emails, letters and WhatsApp messages) because usually the only witnesses the employee has are other employees of the company, who will not want to risk their jobs.
This is why written evidence such as emails, correspondence or WhatsApp messages can be extremely useful if saved elsewhere than on the work mobile phone – again without violating other legal obligations such as trade secrets and banking secrecy.
Deadlines to remember
If you consider your dismissal unfair or abusive, you need to contest the dismissal with a written objection addressed to the employer as soon as possible – by the latest before the end of the notice period (provided for in your contract) otherwise it will be deemed that you have accepted the validity of the termination of your contract.
Your case against your employer becomes time-limited if you do not file your claim before the employment court within a period of six months from the effective date of the termination of your employment agreement.
It is possible to accept the termination but not the amounts due – as proposed in the termination letter. This is why you need to contact a lawyer needs immediately so that you understand what is being offered and what you need to do to protect your rights.
What can you claim?
If unfair dismissal is proven, the you can receive damages of a maximum of six months of salary. The only exception is for point c) above where the maximum damage is two months’ salary.
However, the limit of the damages of six months is related to an ordinary termination which the courts consider abusive. This does not prevent the employee from claiming damages on other grounds such as amounts due under the employment contract or illicit acts committed by the employer (e.g. harassment, defamation etc.)
You also need to weigh up the benefits of settling amicably with your employer and getting a favourable reference letter and recommendation versus spending months in court, with all the associated lawyer fees, in order to obtain a maximum six months of salary plus any additional damages.
In a small country like Switzerland, everyone knows each other. While it is a legal entitlement to fight for one’s rights in court, it is also important to be pragmatic and take into account the practical and financial aspects related to such a fight.
Usually, in small companies, letters from lawyers and an eventual hearing before the conciliation authorities of the employment court brings the parties to a settlement.
With multinationals that have deeper pockets, the cases drag on unless the employee gives up the case because of the associated legal fees (there are no procedural costs).
In any case, if you have adequate legal protection insurance, your legal fees can be covered.
If you are indigent (that is, you don’t have financial resources), you will be entitled to legal assistance. This requires filling in a detailed form and proving details of your income and necessary expenses as listed by the authorities – before filing a case in court.
Immediate termination is only possible for just cause. If the employee is terminated for ‘just cause’, it has an impact on unemployment benefits, which can be refused or reduced significantly.
Immediate termination can also be mentioned in the reference letter. At the very least, it will have an impact on the wording of the reference letter, thus the limiting the chances of you finding new employment in what is already a difficult market .
Just cause is defined by the law as “any circumstance that, as per the rules of good faith, does not allow the party terminating the employment, to continue the employment relations”.
If the reason for the termination is not mentioned in the notice of termination, you are entitled to ask for the cause in writing. The deadline to contest immediate termination only runs from the date at which the cause is communicated to the employee in writing.
For immediate dismissal the employer needs very serious grounds and no warning is required. These are really exceptional cases. In this case, when the just cause – which must be serious – occurs (e. g. attempt to harm the life of the employer or other employees) then the employer has only a short period of reflection (two to three days) to immediately terminate the contract.
However, for all other less serious motives, an immediate termination can only be carried out if the employee has been given a written warning.
There has to be sufficient warning and a chance for employees to improve their behaviour or performance before termination with immediate effect takes place.
If, despite the warning received, employees continue with their behaviour (e. g. repeated delays or non-compliance with instructions given by the employer) then immediate termination will probably be considered justified.
Of course, there is no hard and fast rule and all the circumstances of each individual case need to be examined.
Deadlines to remember
Immediate termination needs to be contested in writing immediately – at the latest within 30 days. You need to have a trace of the date at which your letter is sent – so send it by registered mail and keep the receipt safely or send an email with the proof of delivery and keep a print-out of both.
Once you have made a written objection, you still need to file a case before the employment court within six months from the date at which you were notified of your termination.
What can you claim?
If you are able to prove that your termination was not for just cause, you are entitled to receive your salary until the date at which the employment would have terminated under the terms of an ordinary termination. You can of course also claim damages for illegal acts such as harassment or defamation.
Entitlement after 20 years of employment if you are 50 and over
If you are at least 50 years old and have worked more than 20 years with the same employer, or within the same group of companies, at the time of the termination of your employment, you are entitled to an indemnity, which is either fixed in the employment contract or is fixed by the judge. The judge cannot grant more than eight months of salary.
This amount is reduced or not due if you have terminated your employment without just cause, or if the employer has terminated your employment immediately for just cause, or if the payment of this entitlement would put the employer into financial difficulty.
If you receive a warning, if you see employees around you being fired, or if you are concerned that you are being blamed for things you did not do, don’t wait to contact a lawyer.
If you receive a notice of termination during a meeting, ask for the time to read and understand it before signing. Contact a lawyer with your employment agreement and notice of termination before signing anything. Remain polite and cordial – remember you still need your reference letter.
If you don’t have a legal protection insurance, get a policy which covers employment disputes so you are not concerned about legal fees. No insurance provider will cover you if you already have a problem so it is wise to take an insurance policy now rather than later.
This article was prepared by Renuka Cavadini, an attorney with Page & Partners in Geneva.