When is a termination abusive?
The law does not conclusively determine when a dismissal is considered to be abusive. The Swiss Code of Obligations lists eight abusive grounds for termination. Further abusive grounds have, however, been recognized by the courts. A dismissal is, for example, abusive for the following reasons:
- Discrimination dismissal: Dismissal on the grounds of a personal characteristic is abusive unless the characteristic is connected with the employment relationship or substantially impairs cooperation in the enterprise. Further protection against discrimination is provided by the Equal Treatment Act (find out more here "Employer's obligations under the Equal Treatment Act").
- Exercise of constitutional rights: It is abusive to dismiss an employee for exercising a constitutional right, such as expressing a political opinion, if this does not violate a duty arising from the employment relationship or substantially impair cooperation in the workplace.
- Preventing the accrual of claims: If a notice of dismissal is given in order to prevent claims from arising from the employment relationship, such as a claim for gratuity at the end of the year, the dismissal is also abusive.
- Revengeful dismissal: A dismissal that is given because the dismissed person asserts claims arising from the employment relationship in good faith is abusive. This is irrespective of whether the claims asserted actually exist.
- Dismissal for service and performance of duty: If the dismissed person performs a duty not voluntarily assumed or performs compulsory Swiss military, protective or civilian service and is dismissed for this reason, the dismissal is abusive.
- Labour union dismissal: If the employer dismisses an employee for (not) belonging to an employee association or engaging in labour union activities, the dismissal is abusive.
- Employee representatives: Dismissal of an elected employee representative is abusive unless the employer can prove a different ground for dismissal.
- Mass dismissal without consultation: A dismissal in the context of a mass dismissal is abusive if it was made without consulting the employee (representative) body.
What can be achieved in the case of an abusive dismissal?
An abusive dismissal is effective and terminates the employment relationship. However, the person who has been abusively dismissed is entitled to compensation. The compensation due is determined by the court and can amount to up to six months' wages.
What deadlines must be observed when taking action against an abusive dismissal?
In order to claim compensation for abusive dismissal, the dismissed person must lodge a written objection to the dismissal with the dismissing person/entity by the end of the notice period and file a complaint with the court within 180 days of the termination of the employment relationship.
Are you facing claims for compensation? Or would you like to give notice and find out whether this is possible without exposing yourself to accusations of abusive dismissal? Do not hesitate to approach our employment law team. We will be happy to help you!