Immediate termination for just cause is an exceptional measure and should be granted restrictively. Only a particularly serious breach can justify such a measure. A breach is understood as a violation of an obligation arising from the employment contract, but other incidents can also justify such a measure.
This breach must objectively be capable of destroying or at least profoundly affecting the essential trust in the employment relationship to the extent that continuation of the employment cannot reasonably be expected.
Immediate dismissal may be justified for a less serious reason but repeated (e.g., repeated tardiness, non-compliance with schedules, unjustified absence, late notification of inability to work or late submission of a medical certificate, non-compliance with instructions). In this case, the breach can lead to immediate termination only if it is repeated despite one or several warnings, preferably in writing.
The judge freely assesses whether there are just causes for termination by the employer or the employee.
The dismissal for just causes must occur without delay (a very short period of two or three days, excluding weekends and public holidays, or even a week for cases requiring a decision by a body of a company composed of several people) from the occurrence of the just causes.
Both the employer and the employee can terminate the employment contract immediately for just causes.
Immediate resignation (= immediate notice given by the employee)
Immediate resignation given by the employee is justified when the employer is unable to guarantee its solvency for the payment of future salaries (art. 337a CO) or if the employee suffers acts of violence perpetrated by the employer in person (physical assault, insults, sexual harassment, theft, etc.).
The situation is somewhat different regarding moral harassment (mobbing) that the employee might be a victim of, whether it is the act of the employer themselves or third parties (colleague, supervisor, client, etc.), or reprehensible acts committed against the employee by third parties in a professional context. In this case, it is advised to formally address (by registered mail) the employer, reminding them of their obligations regarding respect and protection of personality (provided for in art. 328 CO) before deciding to resign with immediate effect.
Immediate dismissal (= immediate dismissal by the employer)
Firstly, it should be noted that the employer can immediately dismiss the employee at any time, even if the latter is protected against ordinary dismissal pronounced at an inopportune time (illness, for example).
The judge takes into account the circumstances of the particular case, including the position and responsibility of the employee, the type and duration of the employment relationship, and the nature and importance of the breaches.
However, an inability to work without fault on the part of the employee cannot under any circumstances constitute just cause for immediate dismissal. The same applies to decreased productivity or failing to meet set objectives.
An employee who receives immediate notice for just causes can – if they believe that there are no just causes for termination – contest their existence and approach the judge. To do this, they must, as quickly as possible, write to the employer opposing the termination and giving them a deadline to reconsider their decision. At the end of the given deadline, they can approach the court. As far as possible, the employee should continue to offer their services or at least propose them in the written contestation.