Termination of employment
The employment contract is not immutable. The needs and desires of the employer and the employee may evolve or change. Sometimes they want to end their employment relationship. If a dismissal or a resignation are rather common events, the end of the employment relationship is not without raising a certain number of questions.
Freedom to terminate, yes but...
In principle, freedom of contract means that the employer is free to terminate the employment contract at any time and for any reason.
However, this freedom is limited by the prohibition of abuse of rights. Certain grounds for termination are wrongful. An employer who terminates an employee because he or she is a member of a trade union or because he or she demands overtime pay may have to pay compensation to the employee.
Protection from Termination
During certain periods in an employee's life, finding a new job is highly unlikely. An employee is protected from termination at an inopportune juncture, such as during pregnancy, military service or in the event of incapacity to work. However, this protection is limited in time, depending on the employee's seniority.
Sometimes an employee may go on sick leave immediately after being dismissed. Is this a real incapacity to work in reaction to the dismissal or simply a desire to extend the leave period? In case of doubt, the employer must react quickly and seek medical advice.
When the employee needs to take a break from work, a sabbatical leave seems ideal. By taking unpaid leave, the employee ensures that he or she will return to work after this break. The employer can terminate the employment relationship during this period. However, the time of the beginning of the leave period and the right to salary during this period are subject to special rules.
Sometimes an employer sends an employee to work for a subsidiary in another country for a period of time. As a rule, a contract is concluded between the foreign subsidiary and the employee to regulate the employment relationship during the expatriation or secondment. The question of whether the Swiss company or the foreign subsidiary is competent to dismiss the employee is a delicate one.
The employer may be forced to dismiss an employee during a holiday period. The employee is not protected against termination during this period. However, the holidays may have the effect of starting the notice period later.
Unfortunately, economic crisis often means restructuring and mass redundancies. The employer is obliged to comply with a special formal procedure for consultation of the personnel as soon as he/she intends to make mass redundancies. If the employer does not comply with this procedure, he/she may have to pay compensation to each of his/her employees for wrongful termination.
If the employer wishes to propose a change in the employment contract to the detriment of the employee, he or she must go through the process of a modification-leave. This is a termination accompanied by a proposal to continue the employment relationship under modified conditions. If the employee refuses, the employment relationship will end after a certain period of time.
Termination with immediate effect
Particularly serious misbehaviors by the employee are likely to destroy the relationship of trust between the parties and make it impossible to continue the employment relationship. Termination with immediate effect for just cause is possible at any time, including during pregnancy or sick leave.
The concept of just cause is very restrictive. Theft, suspicion of theft, falsification of expense accounts, inappropriate use of the Internet... However, there are many borderline situations. The employer must treat these situations with caution and on a case-by-case basis, because in the event of an unjustified termination with immediate effect, the bill could be high.
In certain sensitive or tense situations, when collaboration is compromised, it may be in the interest of both parties to terminate the employment relationship by mutual agreement. The employee waives the notice period and loses his or her protection against dismissal when entering into such an agreement. Unemployment insurance may penalize him. A termination agreement must therefore be treated with caution. It will only be valid if it respects strict conditions and provides for reciprocal concessions of equal importance from both parties.
Transfer of business
The transfer of a business is often an economic and organizational upheaval for the employees. The employer cannot terminate his employees’ contracts in order to facilitate the transfer of his/her company, under penalty of nullity. The employees may, however, object to the transfer, which will result in the termination of the contract.
Abandonment of employment
In addition to the classic situations of dismissal or resignation, other situations may result in the termination of the employment relationship.
What about an employee who does not show up for work after his/her holiday or at the end of the period stipulated in his medical certificate? The employer may consider the employee to have abandoned his or her position, under certain conditions. Certain situations are limited, such as when the employee takes a holiday without the employer's consent or leaves his or her position following an altercation with the employer.
Duty to Return
Sometimes an employee is given equipment in order to perform his or her job. Laptop, cell phone, company car... This equipment, which can sometimes be expensive, must be returned at the end of the employment relationship, sometimes on the last effective day of work in case of release from the obligation to work.
If it is not settled beforehand, the question of the return of the professional cell phone which has also been used for private purposes during the employment relationship is delicate. The balance between the employer's interest in keeping the phone number and the employee's interest in keeping his or her photos and contacts is difficult to strike.
When the employer offers continuing education to his/her employee, he/she has an interest in ensuring that the employee does not rush to a new employer or even a competitor shortly thereafter. Under certain conditions, the employer may provide that the employee must reimburse all or part of the training if he or she terminates the employment relationship before a certain deadline.
An employer may grant a loan to his or her employee. The diligent employer will provide in writing the terms of repayment of the loan, especially in case of termination of the employment relationship before it is fully repaid.
The work certificate is an essential document for the employee when looking for a job. The employer is obliged to provide one upon request. Between the duty of truth and the duty of benevolence towards the employee, the drafting of the work certificate is sometimes a headache. If the employer produces a certificate that is falsely complimentary or, on the contrary, unnecessarily depreciatory, he or she risks incurring liability.
When an employee has had access to confidential company information, it is important for the employer that the employee doesn’t use it for the benefit of a competing company at the end of the employment relationship. The employer may, under certain very specific conditions, conclude a non-competition clause with his or her employee.
In the collective imagination, a bonus is always a gift from the employer, which he or she has the choice to give. However, at the end of the employment relationship, the employer may be obliged to pay a part of this bonus.