Unfair dismissal is an important topic in Swiss employment law. In Switzerland, the dismissal of an employee must always comply with certain conditions, and failure to do so may result in the employee being classified as unfairly dismissed. A dismissal is considered unfair if it is made in circumstances which, according to the rules of good faith, do not allow the employment contract to be terminated.
Swiss law is characterized by a balance between protection for employees and flexibility for employers. However, identifying and predetermining exactly what constitutes unfair dismissal can be complex, and Swiss courts regularly look at individual cases to clarify the principles.
The concept of unfair dismissal in Switzerland is rich and multidimensional. The conditions that characterize a dismissal as unfair are defined primarily by Article 336 of the Swiss Code of Obligations.
Discrimination in the context of dismissal is an area of great concern in Swiss labor law. A dismissal is considered unfair if it is carried out for discriminatory reasons, and this can manifest itself in a number of ways.
Discrimination based on gender, for example, could include the dismissal of an employee because of her pregnancy, which would be manifestly discriminatory and specifically protected by Swiss law. Discrimination can also be based on an employee’s race or ethnic origin, which includes dismissal decisions based on prejudice or stereotypes associated with the employee’s race or ethnic origin.
Age is another area where discrimination can occur, as when an older employee is dismissed simply because of their age rather than their ability to perform their job. Discrimination based on religion is also prohibited in Switzerland, where freedom of belief and conscience is protected by the Constitution. Dismissing an employee because of their religious beliefs, or because of their religious practices, would be a discriminatory act.
Sexual orientation is another protected criterion, and dismissing an employee because of his or her sexual orientation is also prohibited. What’s more, in Switzerland, workers’ rights to join a union and take part in union activities are protected. Dismissing an employee on the grounds of union membership or activity would therefore be discriminatory and abusive.
A dismissal may be deemed unfair if it is made because the employee has lawfully exercised his or her constitutional rights. In Switzerland, the exercise of constitutional rights by an employee is protected and generally cannot be used as grounds for dismissal. These rights can include freedom of expression, freedom of assembly, freedom of religion, and other fundamental rights. Dismissing an employee for exercising these rights would be considered unfair dismissal. This could include actions such as denouncing illegal or immoral acts committed within the company, or having expressed a political opinion, even if it disagrees with that of the employer or management.
However, protection for the exercise of constitutional rights is not absolute. If the employee exercises these rights in a way that violates the law, disrupts the workplace or is incompatible with the obligations of his or her position, dismissal may be justified. Case law has established that assessing the legitimacy of dismissal in this context requires a delicate balancing of the interests of the employee and the employer.
Thirdly, the timing of a dismissal can also make it unfair. Dismissing an employee during a period when he or she is in a fragile situation can lead to the dismissal being deemed unfair, and several situations merit particular consideration.
Dismissing an employee during a long-term illness can be problematic, particularly if the employee is unable to work and relies on his or her job to access health-related benefits. Swiss law imposes certain protections with regard to the duration of the illness and the point at which dismissal can legitimately take place, to ensure that the employee is not unfairly deprived of support at a critical time.
Compulsory military service in Switzerland is another period during which dismissing an employee can be considered abusive. Since military service is a legal obligation for many Swiss citizens, dismissing an employee because of this obligation would be manifestly unfair and contrary to the principles of fair employment.
Dismissal following an accident, especially if work-related, is also a sensitive area. If an employee is dismissed following an accident that has rendered him or her temporarily or permanently unable to work, the situation must be carefully assessed. In particular, it must take into account the nature of the accident, the possibility of reassignment or adaptation of the position, and the expected duration of the incapacity.
A dismissal may be deemed unfair if the reason is personal and unrelated to the employee’s ability to perform his or her job or to the needs of the company. This may include reasons such as personal disputes unrelated to work, disagreements with management or colleagues over non-work issues, or other personal factors. It is important to recognize that the employer generally has the right to terminate an employment contract for a variety of reasons.
However, when these reasons are purely personal and unrelated to the employee’s professional duties, the situation becomes more complex. The dismissal could be perceived as an emotional reaction rather than a rational business decision, and consequently be considered abusive. For example, if an employer dismisses an employee simply because they had a personal altercation outside the workplace, this could be seen as disproportionate. The key here is the relevance of the personal reason to the employee’s work. If the dispute does not affect the employee’s ability to do his or her job or have a negative impact on the business, the dismissal is likely to be deemed unfair.
The consequences of unfair dismissal in Switzerland are serious, affecting both employer and employee. On the employer’s side, if a dismissal is found to be unfair by a court, this may result in an obligation to pay compensation to the employee. This compensation is governed by article 336a of the Swiss Code of Obligations, and can amount to up to six months’ salary. The exact amount depends on various factors, such as the length of the employment contract, the employer’s fault and the particular circumstances of the dismissal.
For the employee, in addition to the possibility of financial compensation, there are specific remedies available in the event of unfair dismissal. The employee must act quickly, as there is a time limit for contesting a dismissal, which is generally 30 days after notification of the dismissal. The employee can seek mediation or conciliation with the employer, or go to court to seek redress. The procedure can be complex, often requiring the assistance of a lawyer specializing in employment law.
It is important to note that Swiss law generally does not offer the remedy of reinstatement. In other words, even if the dismissal is deemed unfair, the employee does not generally have the right to be rehired. This contrasts with labor law regimes in other countries, and underlines the importance of financial compensation as the employee’s main remedy.