Ordinary dismissal

Notion

Under the contractual freedom, in the case of a contract of an open-ended contract, the employer is free to terminate the employment relationship at any time, provided that the notice period is respected.

There are numerous exceptions to this principle. The employee will sometimes be protected against termination at an inopportune juncture in case of illness or accident. A dismissal by the employer will, in specific situations, be wrongful and will engage his responsibility. In addition, certain situations deserve special attention.

Notice

The employer must respect the employee's leave period. This is often calculated in months for the end of a month. It depends in principle on the employee's years of service.

The question of when the notice period starts to run often arises, especially if the employee refuses to accept a hand-delivered letter of dismissal or does not pick up his registered mail.

The notice period will sometimes not begin to run immediately if the employee is notified of the termination during his holiday or sabbatical.

Wrongful termination

In principle, the employer may terminate an employee for any reason he wishes. This freedom of termination is however limited by the prohibition of abuse of rights.

Certain reasons for dismissal will be considered as wrongful. This could be the case if the employer dismisses an employee because of her pregnancy, homosexuality, age or because the employee is exercising his rights. The employer may be liable.

Claim for damage

If the employee violates his or her obligations, the employer may terminate the employment contract in the ordinary way. If the employee has caused damage, the employer can claim compensation.

Warning

In principle, the employer may terminate the employee in the ordinary way without giving prior warning. However, there are exceptions, especially if the employee is elderly or if the reason for dismissal is inherent to his personality.

On-call work

On-call work is particularly common in the sales and catering industries and is popular with some companies. The employer proposes missions to the worker, which the latter is free to accept or not. The employer does not make any commitment as to the duration and schedule of the work.

When the employer does not need the services of the on-call worker and wants to terminate the contract, the employer often stops using the services of the on-call worker. The employer is obligated to respect the statutory leave period and cannot always simply stop using the worker.

Continuing education

The employer sometimes offers continuing education to his/her employees. The employer often wants the employees to remain with the employer for a certain period of time after completing the training and not to use their new knowledge for a new employer. Can he demand that they pay back the continuing education if they are terminated with immediate effect?

Surveillance

The employer sometimes realizes through video or digital surveillance that the employee is looking at pornographic sites or spending his working time doing nothing. An ordinary dismissal is in principle justified. However, if the employer does not follow a strict procedure, it will be a wrongful termination. The employer must first issue supervisory regulations that comply with the requirements of the Federal Data Protection Commissioner.

Conflicts in the workplace

When faced with conflicts in the workplace, the employer must take measures to put an end to them. He/she cannot simply dismiss the troublemaker, except in specific circumstances.

Release from Work

After a dismissal, the employer's concern that the dismissed employee will create a bad work environment or cause damage to customers or company data is real. In most cases, the employer will be able to release the employee from his obligation to work. All other rights and obligations remain in place until the end of the employment relationship. 

However, there are exceptions. The employee may react if a release would depreciate him/her on the labor market.

In addition, if an employee suffers a reprisal leave because he/she has exercised a right based on the Gender Equality Act (GEA), the dismissal may be void. In such a case, the possibility of releasing her from her obligation to work is limited.

Non-competition clause

During the employment relationship, the employee becomes aware of many of the employer's confidential data. It is in the employer's interest not to use this information for the benefit of a competitor. The employer and the employee may conclude a non-competition clause which will be subject to numerous conditions of validity.

It should be noted that this non-competition clause will lapse if the employer terminates the employment contract without just cause.

Bonus

In principle, when it is a real bonus, the employer is not obliged to pay it to his employee if he terminates him in an ordinary way before the date of granting. The situation is different for the 13th salary.

One must be careful because, even if the employer thinks that the bonus is optional, there are many cases where it will be reclassified as salary. In such a case, the payment of the bonus will be mandatory and the employee will be entitled to the bonus, calculated on a pro rata basis of the duration of the employment relationship in the year of the dismissal.

Modification-leave

The modification-leave is an ordinary dismissal with the offer to continue the employment relationship under changed conditions. The employer is obliged to follow a strict procedure and conditions in order to proceed with a modification-leave. Failure to do so may result in the termination being considered wrongful.

Protection against dismissal

The Swiss Code of Obligations provides for periods during which the employee is protected against terminations at inopportune junctures. If, following an ordinary dismissal, the employee becomes ill, the period of leave may be suspended. The employer must seek medical advice if there is any doubt about the employee's inability to work.

Termination agreement

In certain tense and delicate situations, cooperation between the employee and the employer is sometimes compromised. If there is a risk that a termination could be considered wrongful, if the employee is protected against termination at an inopportune juncture or if he or she has a fixed-term contract, the employer's leeway is limited.

A termination agreement is possible at any time. In view of the adverse consequences that such an agreement may have for the employee, it is subject to strict conditions of validity.

Transfer of a company

In the event of a transfer or merger of companies, the employer is sometimes tempted to dismiss employees that the acquirer does not want. Is this legal? When employees are transferred to the new company, how are years of service and the leave period calculated?

Strike

Because of the economic consequences of a strike for the company, the employer sometimes wants to fire the troublemakers in reprisal or to end the strike.

The right to strike is protected by the Federal Constitution. It is subject to numerous conditions of validity. An ordinary dismissal is only possible if the strike is illegal and the employee could have been aware of it.