Sources of regulation
The sources of labour law are
to be found in the Code of Obligations (CO) of 30 March 1911, as amended in July
2006, Part X of which is entitled “Contracts of Employment”,[1] and
the federal Labour Act (LA) concerning work in industry, handicrafts and
commerce of 13 March 1964, as
amended by several ordinances. In addition, labour law is governed by,
among others, collective contracts of employment (CCE), which can be either
national or cantonal.
Scope of legislation
The CO applies to every
contract of private law and regulates the employment relationship between
employers and workers who conclude individual employment contracts.
According
to Art. 320 of the CO, employment contracts do
not require for their validity any special form.
However, when the duration of employment relationship is unlimited or
of more than one month, the employer must inform by written the worker
on specified work conditions (Art. 330b CO), such as the name of the
parties, date of the beginning of the employment relationship, job description,
salary conditions and weekly number of work hours.
Written contracts are considered mandatory in the case of some special contracts,
such as those made for apprentices (Art. 344a (1) CO) and travelling sales
staff (Art. 347a (1) CO).
Contracts of employment
Art. 319 CO stipulates that under an individual employment contract the
worker undertakes to perform work in the employer’s service for either a
fixed or an indefinite period of time and the employer is obliged to pay
wages based either on time periods, or on the work performed (time wage or
piece-work wage). The concept of an employment contract also includes contracts
whereby the employee undertakes to regularly perform work in the employer’s
service on an hourly, half-day or daily basis (part-time work).
The duration of the employment contract is set by agreement of the parties.
It is indefinite, except where a fixed term has been agreed by the parties
or is dictated by the nature of the work. Fixed-term contracts terminate
with the expiry of the agreed period. If a fixed-term contract is tacitly
renewed, it is deemed concluded for indefinite duration (Art. 334, CO). However,
a fixed-term agreement intended to circumvent the terms and conditions of
dismissal prescribed by law is void.
Termination of employment
The Swiss legislation on the termination of employment relationship applies
in principle equally to the employer and the worker. A contract concluded
for an indefitite period can be terminated after a period of notice given
by one of the parties or at any time, without prior notice, if one of the
parties has a just cause to terminate it.
The contract of employment can be terminated, not
at the initiative of the employer, in certain circumstances, including by:
- the
expiry of an employment relationship for a fixed term;
- notice
from the employee; and
- the death
of the employer; however, the employee may claim reasonable compensation
for damage caused to him or her because of the premature ending of the
employment relationship (Art. 338a(2), CO).
During the probationary period, either of the parties may terminate the
employment relationship with a notice period of seven days; the first month
of the employment relationship is deemed to be the probation period (Art. 335b(1),
CO). Various provisions can be agreed in writing, by standard contract or
collective agreement, though the probationary period may not exceed three
months (Art. 335b.2 CO). In the event that a probation period is interrupted
due to sickness, accident or the performance of a legal duty which is not
voluntarily assumed, the probation period is prolonged correspondingly (Art.
335b(3), CO).
A worker may terminate his/her employment contract
with immediate effect for justifiable cause (Art. 337.1 CO) or in the event
of insolvency of the employer, if the latter is unable to provide security
for the worker's claims arising from the employment relationship (Art. 337a CO).
Workers may terminate the contract within the same
timeframes as the employer, unless such termination is unreasonable or untimely.
Resignation is untimely if the worker terminates the contract while a superior
whom he/she is required to replace is performing a compulsory service (Art.
336d.1 CO).
There is an abuse of rights if one of the parties terminates the employment
contract (Art. 336. 1, CO):
- because
of a quality inherent in the personality of the other party, unless such
quality relates to the employment relationship or significantly impairs
cooperation within the enterprise;
- because
the other party exercises a constitutional right, unless the exercise of
such right violates a duty of the employment relationship or significantly
impairs cooperation within the enterprise;
- to
solely frustrate the formation of claims of the other party arising out
of the employment relationship;
- because
the other party asserts in good faith claims arising out of the employment
relationship;
- because the
other party performs compulsory Swiss military service, civil defence service,
military women’s service, or Red Cross service, or a legal duty not voluntarily
assumed.
Dismissal
Two types of termination
of employment relationship are envisaged under Swiss law. The employer
may terminate the contract by ordinary dismissal or by means of dismissal
with immediate effect. Justification is not required in the Swiss legal
system for an ordinary dismissal, as dismissal with notice is not linked
to the existence of a valid reason.
The employer may at any time terminate the employment relationship without
notice for valid reasons. A valid reason is considered to be any circumstance
under which the terminating party can in good faith not be expected to continue
the employment relationship (Art. 337(1), (2) and (3), CO).
Upon expiry of the probation period, the employer may not terminate the
employment relationship (Art. 336c(1), CO)
during:
- the
other party’s performance of compulsory Swiss military service, civil defence,
women’s military service, or Red Cross service and, in case such service
lasts more than 11 days, during the four weeks prior to and after the service;
- the
period that the worker is prevented from performing his or her work fully
or partially by no fault of his or her own due to sickness or accident
for 30 days in the first year of service, for 90 days as of the second
year of
service until and within the fifth year of service, and for 180 days as
of the sixth year of service;
- pregnancy
and during the 16 weeks following confinement; or
- the worker’s
participation with the agreement of the employer in a foreign aid service
assignment abroad ordered by the competent federal agency.
Collective dismissals are those made by the employer within a period of
30 days for reasons which are not related to the personality of the workers
and affecting the following numbers of workers
(sec. 335d, CO):
- ten
workers in establishments employing between 20 and 100 workers;
- 10
per cent of the workforce in establishments employing between 100 and 300
workers; and
- 30
workers in establishments employing more than 300 workers.
There is an abuse of rights if the employer dismisses the worker (Art.
336. 2, CO):
- because
the worker belongs or does not belong to an employee association, or because
he or she lawfully exercises a union activity;
- during
the period the worker is an elected employee representative in a company
institution or in an enterprise affiliated thereto, provided that the employer
cannot prove a justified motive for the termination (note that the protection
of the worker representative whose term of office has ended because of
a transfer of employment relationships remains in effect up to the moment
when
this term would have expired if the transfer did not take place); or
- without respecting
the consultation procedure prescribed for collective dismissals.
Notice and prior procedural safeguards
Upon the request of the other party, the party giving notice has to state
the reason for terminating the employment contract (Art. 335, CO).
The ordinary period of dismissal notice varies according to length of service.
The notice period is of one month during the first year of service, two months
for the employment lasting two to nine years, and three months for the employment
whose duration exceeds nine years. The timeframes envisaged under the law
may be changed by written agreement, standard employment contract or collective
agreement, but may not be less than one month. Exceptions to this rule are
admitted during the first year and if they have been set by a collective
agreement (Art. 335c CO).
An employment relationship for a fixed period of time ends without notice
of termination. If such a relationship is tacitly continued after the expiration
of the agreed period, it is deemed to be an indefinite employment relationship.
After ten years, either of the parties may terminate a fixed-term employment
relationship which has been entered into for a longer period with a notice
period of six months (Art. 334(1), (2) and (3), CO).
In the case of collective redundancies, the employer may terminate the employment
contracts with a 30-day notice period (Art. 335d CO). The employer
is also required to consult the workers' representatives before proceeding
to redundancies and allow them to formulate proposals on the means of averting
collective dismissals or to limit the number of persons affected and minimize
the consequences. The employer must state in writing the reasons for dismissal,
the number of workers affected, the number of workers regularly employed
and the period in which the dismissals are to take place. He or she must
send a copy of this statement to the Cantonal Labour Office, which will try
to find solutions to the problems posed by the collective dismissals. The
workers’ representatives may submit their observations (Art. 335f and
g, CO).
Notice given during the periods stated in sec. 336c(1), CO, is deemed void (see above). If the notice
is given prior to the beginning of such period, the expiry will be suspended and will continue only after termination of the
final period (sec. 336c(2)).
The national CCE concerning hotels, restaurants and cafés (CCE for 1996)
prescribes notice periods which are shorter than those contained in the CO
(a month for the completion of between one month and five years of service,
and two months after the fifth year of service).
Severance pay
Upon termination of the employment relationship of a worker of at least
50 years of age and with 20 or more years of service, the employer has to
pay the worker a severance allowance, the amount of which may be fixed by
written agreement, standard employment contract or collective employment
contract, but it should not be less than an amount equal to the worker’s
wages for two months (Arts. 339b and 339c, CO).
If the amount of the severance pay is not fixed, a judge may set it at his
or her discretion, but it should not exceed the amount equal to the worker’s
wages for eight months.
Severance pay may be reduced or eliminated if the employment relationship
was terminated by the employee without a valid reason or by the employer
with a valid reason. Collective employment contracts may contain additional
provisions in this regard.
Avenues for redress
If the termination is
unreasonable or if termination with immediate effect is not based on justifiable
cause, the party concerned is entitled to compensation (Art. 336a.1,
337d.1 CO).
The employer and worker
may terminate an employment contract immediately and without notice, if
there are good grounds for such immediate termination, especially in circumstances
which, in keeping with the rules of good faith, render the continuation
of the work relationship intolerable for said people (Art. 337 CO). If
termination with immediate effect is unjustified, it does nonetheless remain
valid. However, the party who terminates the contract with immediate effect
without justifiable cause must indemnify the other party.
The party who improperly gives notice of termination of the employment relationship
must pay the other party compensation in an amount to be determined by the
presiding judge. However, such compensation must not exceed an amount corresponding
to the worker’s wages for six months. Claims for damages based on other legal
grounds are unaffected. There are no provisions for reinstatement (Arts. 336a(1),
(2) and (3), CO).
If the employer dismisses the worker without notice in the absence of a
valid reason, the latter will have a claim for compensation of what he or
she would have earned if the employment relationship had been terminated
by observing the notice period or until the expiry of any applicable fixed-term
period. Offset against this compensation will be any amount the worker saved
because of the termination of employment relationship, or
any amount he or she earned from other work, or which he or she intentionally
failed to earn. The presiding judge may order the employer to pay an indemnity
to the worker which the judge may determine at his or her discretion, taking
into account all circumstances. Such indemnity may not, however, exceed the
worker’s wages for six months (Art. 337c, CO).
The employment relationship ends 30 days after the notification of collective
dismissal to the Cantonal Labour Office. Dismissal is considered abusive
if the employer has not respected the consultation procedure prescribed for
collective dismissals. If this is the case, compensation corresponding to
the employee’s wages for a period of up to two months will be due. However,
an applicable CCE may contain provisions for the payment of additional compensation
(Arts. 336c(2) and 336a(3), CO).
If a worker wishes to claim compensation, he or she must file a written
objection against the termination with the party who gave notice of termination
no later than by the end of the notice period. If the objection is validly
made, and if the parties cannot agree on a continuation of the employment
relationship, the party who has received notice of termination may assert
his or her claim for compensation. The claim is forfeited if no legal action
is taken within 180 days after the employment relationship has ended (Art. 336b(1)
and (2), CO).
The procedure is conducted at the cantonal level, and such cases are usually
heard by a civil court. Some cantons have established labour courts. The
cantons are required to provide a simple and rapid procedure for dealing
with all claims brought relating to employment contracts and involving sums
under 30,000 Swiss francs (Art. 343, CO).
The burden of proof lies with the employer in two following cases: discriminating
dismissal of a women and dismissal of a workers’ representative. In all the
other cases, the worker dismissed has to prove that the employer has violated
the provisions of the Swiss legislation.
Further information
[1] Arts. 319-362. Arts. 334-339 deal with
termination of the employment relationship.
|
