Ordinary termination of employment
Ordinary dismissal is the termination of the employment relationship by the employer, provided that the notice period is respected. In principle, it is possible to terminate a contract of employment at any time if it is for an indefinite period. The situation is more nuanced for contracts of maximum or minimum duration.
There are periods of protection against dismissal and wrongful situations. In addition, certain situations deserve special attention.
The employer must respect the employee's notice 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 open a hand-delivered letter of dismissal or does not pick up his registered mail.
Sometimes the notice period will not begin to run immediately when the employee is on vacation or sabbatical.
Grounds for Termination
The permissible grounds for termination are varied. They are limited only by certain protective laws and abuse of rights.
Reasons related to an employee's illness, pregnancy or religion are sensitive. The same applies when the employer dismisses the employee because he or she is exercising his or her rights.
In principle, alcohol or drugs at work can lead to ordinary or even immediate dismissal in serious cases. But be careful if the employee turns out to be addicted to drugs or alcohol...
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, he will be obliged to repair it.
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.
In on-call work, the employer calls the employee for specific assignments when he/she is needed without committing to the duration or the working hours. Often, when the employer no longer needs the employee's services, he or she will abruptly stop calling. Does the employer have the right to do this?
The employer sometimes offers ongoing training to his/her employees. The employer often wants to ensure that the employees do not use their new knowledge to work for a new employer. Can the employer demand that they pay back the ongoing training if they are dismissed for just cause?
The employer sometimes realizes through video or digital surveillance that the employee is looking at pornographic websites or spending his or her working time doing nothing. An ordinary dismissal is in principle justified. However, if the employer does not follow a strict procedure, it will be considered a wrongful termination.
Conflicts in the workplace
When faced with conflicts in the workplace, the employer must take steps to put an end to them. The employer cannot simply dismiss the troublemaker, except in specific circumstances.
Release from Work
After a dismissal, the employer's concerns that the dismissed employee will create a bad work environment or cause damage to customers are real. In most cases, the employer will be able to release the employee from his obligation to work. The other rights and obligations remain.
However, there are exceptions. The employee may react if a release would devalue him or her in the labor market.
In addition, where an employee is subject to a retaliatory discharge because she has exercised a right based on the Gender Equality Act, the discharge may be nullified. In such a case, the possibility of releasing her from her obligation to work is limited.
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.
In principle, when it is a real bonus, the employer is not obliged to pay it to his employee if he terminates him or her 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 employee will be entitled to its payment.
Modification Leave is an ordinary dismissal with an offer to continue the employment relationship on modified terms. The employer must respect strict rules if he does not want to incur liability.
Protection against dismissal
The Swiss Code of Obligations provides for periods during which the employee is protected against terminations at an inopportune juncture. If, following an ordinary dismissal, the employee becomes ill, the notice period may be suspended. The employer must take steps to verify the incapacity to work if there is any doubt.
In certain tense and delicate situations, cooperation between the employee and the employer is sometimes compromised. If a dismissal is likely to 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 can quickly find himself in a bind.
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?
Because of the economic consequences of a strike, employers sometimes want to fire troublemakers in retaliation or to end the strike.
The right to strike is protected by the Swiss 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.