Termination with immediate effect
In principle, an employer may terminate an employee’s contract at any time as long as the employee respects the notice period.
Termination with immediate effect can occur at any time, including during a fixed-term contract or a period of protection against termination at an inopportune juncture. It is effective immediately. However, it must be justified by particularly serious or repeated causes.
Termination with immediate effect is justified if the circumstances do not allow the employer to be required to continue the employment relationship until the end of the notice period. The employee's breach of duty must be particularly serious or have been repeated despite one or more warnings.
The notion of just cause depends on the seriousness of the employee's misconduct, but also on the employee's function within the company or on a concomitant misconduct by the employer.
When faced with just cause for immediate termination, the employer must react quickly. If the employer does not respect the short reaction period established by the jurisprudence, the termination with immediate effect will be unjustified. It will be presumed that the employer can live with the situation until the end of the notice period. Certain circumstances may justify a longer period.
The commission of a criminal offence to the detriment of the employer is likely to break the relationship of trust and justify immediate termination. This is the case in principle for theft from the employer or from customers. The question is more nuanced when it comes to petty theft, for example of toilet paper rolls or filing cabinets.
The situation is delicate when the employer has only suspicions, even if well founded. An employer who terminates an employee's contract with immediate effect without taking appropriate action does so at his or her own peril.
Alcohol and drugs
If an employee shows up to work under the influence of alcohol or drugs, he or she may not perform the job properly, may damage the company's image or may cause accidents. Depending on the circumstances, termination with immediate effect may be warranted. Sometimes one or more prior warnings are required if the situation does not reach a certain level of seriousness.
Sometimes employees receive gifts from customers or suppliers. When these gifts are intended to give the employee certain privileges, they may be considered as bribes or even as corruption under the criminal code. If the employee accepts or solicits such gifts, he or she may be subject to immediate termination.
Executives and high managerial positions
These employees are bound by a heightened duty of loyalty to the employer because of the special credit and responsibility that their position within the company gives them. Their breaches are judged with greater rigor.
Is an termination with immediate effect of a manager who visits a competitor and is given business documents justified? What about an executive who strongly criticizes or insults the employer in front of subordinates?
Protection of legal personality
The employer is obliged to protect the health and personality of his or her employees. He or she must give them instructions, in particular concerning safety clothing. If he/she fails to do so, he/she is liable. Can the employer terminate with immediate effect a bricklayer’s contract who refuses to wear a protective helmet?
Protection against termination at an inopportune juncture
Termination with immediate effect is possible at any time, even if the employee is protected against termination at an inopportune juncture due to illness or pregnancy, for example. If the immediate termination proves to be unjustified, the employer will have to pay compensation equivalent to the employee's salary for the duration of the protection against termination at an inopportune juncture.
Lying during the job interview
Between a simple exaggeration or a true lie, the candidate is tempted to embellish his or her CV or to hide his or her health problems that could affect the proper performance of the job. The employer may terminate the employee’s contract with immediate effect, depending on the seriousness of the case, when he or she discovers the lie.
If, on the other hand, the employee has lied about a private matter, such as pregnancy or illness, which is not directly related to the job, immediate termination will be unjustified and may also be considered wrongful.
Recording at the workplace
Recording confidential data at the workplace or without the knowledge of the persons concerned may constitute a criminal offence and a violation of the Federal Act against Unfair Competition. The employee risks a lot. The situation may be different if the employee has well-founded fears for his or her psychological or physical integrity.
Through video or electronic surveillance systems, the employer can detect thefts or visits to pornographic or illegal websites. Before implementing such surveillance, the employer must issue a directive that complies in all respects with the procedure imposed by the Federal Data Protection Commissioner. Otherwise, the employer will not be able to use the evidence gathered through the surveillance to justify immediate termination.
The employer is obliged to take measures to put an end to situations of sexual harassment, mobbing and cyber harassment. In serious cases, the employer may terminate the perpetrator’s contract with immediate effect.
Tense situations exist between colleagues or with the employer. When an employee loses his or her temper and lashes out, immediate termination may be warranted. This may not always be the case if the employer has a hand in the conflict or allows it to escalate.
The employee must not compete with the employer during the employment relationship. Working for a competing company or passing on confidential company information can be costly to the employee.
Inability to work
During a sick leave, the employee cannot engage in all the activities he or she wishes. If the employee performs a concurrent activity or an activity which aggravates his or her condition, termination with immediate effect may be warranted. The same applies if the employee provides a false medical certificate.
There are many conditions for a strike to be valid. If the employee participates in an illegal strike, immediate termination may be pronounced in certain situations.
After the trial period, only a termination with immediate effect is possible during the apprenticeship contract. It is possible if the purpose of the training is seriously compromised. In the event of serious misconduct, the employer must take into account the employee's youth and lack of experience before dismissing him/her with immediate effect.
Other cases such as numerous late arrivals, false stamps or falsification of business expenses may justify a termination with immediate effect. These shall often be preceded by a warning.
Termination with immediate effect is always effective immediately, whether it is justified or not. If the dismissal is unjustified, the employee is entitled to compensation corresponding to the salary he or she would have received if he or she had been dismissed in an ordinary way. This can amount to several months' salary, especially if the employee was ill or pregnant at the time of termination.
In addition, the employee may request additional compensation. Its amount will depend on the circumstances and in particular on the seriousness of his fault.