Freedom of contract means that an employer is free to decide to terminate an employee’s contract for any reason he or she sees fit, as long as he or she meets his or her notice period. This freedom is limited by the prohibition of abuse of rights.
A dismissal is wrongful when it is given :
- for a reason inherent to the employee's personality ;
- because of a violation by the employer of one of his or her obligations;
- because of the exercise of a constitutional right;
- to prevent claims from arising;
- because the employee is fulfilling a legal obligation;
- because the employee belongs to a trade union;
- when the employer does not respect the consultation procedure provided for mass redundancies.
The definition of personality-related reasons is rather broad and covers a large number of reasons. These reasons for dismissal are wrongful, unless they are related to the employment relationship or cause serious harm to the work in the company.
Incapacity to work
Dismissal due to illness of the employee is in principle wrongful. But what if the employee is permanently unable to perform his or her work? Is the same true if the employee is unable to work because of mobbing or sexual harassment for which the employer is responsible?
Health status, maternity and criminal record are sensitive personal data. In principle, the employer is not allowed to ask questions on this subject during the job interview unless it is directly related to the job. If the employer dismisses the employee after discovering that he or she has lied, this will sometimes be an abuse of rights.
In the context of the COVID19 pandemic, the employer sometimes wishes to implement a mandatory vaccination, in order to limit work incapacity and quarantine within the company. Employers must be careful because if they terminate an employee for refusing to be vaccinated, the termination may be wrongful.
Law on equality between women and men
The Law provides for a prohibition on discriminating against an employee because of his or her sex, family situation or pregnancy. A dismissal after returning from maternity leave, for example, will be considered wrongful, unless the employer has objective reasons for the dismissal.
Love at work
A romantic relationship with a co-worker is part of the employee's personality. However, dismissal is possible when this romance is likely to cause major inconvenience to the company.
Age is a reason inherent to the employee's personality. Dismissing an employee because he or she is approaching retirement age or is less able to adapt to new technologies can be wrongful. The employer must take certain steps before terminating the employee because he or she has a greater duty to assist.
Alcohol and drugs
When an employee shows up at work under the influence of alcohol or drugs, it can damage the company's image and create accidents. The employer must react. However, the employer must be vigilant if the employee is an alcoholic or drug addict...
The character of an employee is an integral part of his or her personality. A dismissal based on the employee's character may be considered wrongful. However, if the employee's bad character is detrimental to the work of the company, a dismissal may be justified.
Violation of an employer's obligation
Generally speaking, it is an abuse of rights for an employer to use his/her own violation of an obligation to terminate an employee. This may be the case when the employer dismisses a victim of mobbing, sexual harassment or an employee involved in a labor dispute without first taking the necessary measures.
It is well known that employees are reluctant to assert their rights during the employment relationship for fear of losing their job. To remedy this, they are in principle protected against reprisal leave when they have asserted a right arising from the employment relationship. This protection is particularly broad.
A dismissal is also considered wrongful when the employer tries to avoid his or her obligations, in particular to pay a bonus or to increase the employee's vacation entitlement.
The Swiss Constitution protects certain fundamental freedoms such as freedom of association, expression or religion. Dismissal of an employee because of his or her membership in a trade union or because he or she expresses his or her political or religious views is improper.
In certain situations, such a dismissal will be justified, for example, when the employee makes improper comments to his or her employer or participates in an illegal strike. The situation is more delicate when the wearing of a headscarf by an employee causes tension within the company.
When an employer wishes to modify an employee's employment contract in an unfavorable manner, he or she must go through the process of modification-leave. The employer must follow a strict procedure.
If the employer terminates the employee for refusing the proposed changes, if the employer attempts to implement the changes before a certain time limit, or if the proposed changes are unlawful, the employer is at risk.
If the employer intends to proceed with a mass redundancy, it is imperative that a formal procedure of consultation of the personnel be followed beforehand. In large companies, the employer is even obliged to negotiate a social plan. If it does not do so, the employer risks having to pay compensation to each of his or her employees.
When tense and/or delicate situations arise, the collaboration between employer and employee can be compromised. If there is a risk that a dismissal may be considered wrongful, a termination agreement may be appropriate to end the employment relationship. However, it must respect a number of conditions of validity and contain reciprocal concessions.
The law protects an employee who performs a legal obligation or a task in the public interest, such as curator, firefighter or witness. Can an employer fire an employee who has given testimony adverse to his/her case in a lawsuit?
When witnessing criminal offenses or abuses by co-workers or a supervisor, an employee can and should report them. Yes, but to whom? Can an employer fire an employee who has reported patient abuse to the media?
An employee who believes that he/she has been unfairly dismissed must request the written reason for the dismissal and lodge an objection within the period provided for by law. They must also take legal action within a certain period of time after the end of the employment relationship.
If the dismissal is found to be wrongful, the employee is entitled to compensation, which can amount to several months' salary, as well as compensation for moral damages in serious cases.
In principle, the employer is obliged to give the employee access to his/her personal data. What about minutes of meetings or personal notes of superiors? Can the employee go fishing for information in order to build a case for wrongful dismissal to the detriment of the employer?