Unfair dismissal is a significant topic in Swiss labor law. In Switzerland, dismissing an employee must adhere to specific conditions, and failure to meet these conditions can result in the dismissal being deemed unfair. A dismissal is considered unfair if it occurs under circumstances that, according to the principles of good faith, do not justify terminating the employment contract.
Swiss law strikes a balance between protecting employees and maintaining flexibility for employers. However, identifying and predicting what constitutes unfair dismissal can be complex, with Swiss courts frequently examining individual cases to clarify these principles.
Conditions for unfair dismissal
The concept of unfair dismissal in Switzerland is intricate and multifaceted. The primary conditions that define a dismissal as unfair are outlined in Article 336 of the Swiss Code of Obligations.
Unfair dismissal due to discrimination
Discrimination in the context of dismissal is a major concern in Swiss labor law. A dismissal is considered unfair if it is based on discriminatory reasons, which can manifest in several ways.
For instance, gender discrimination includes dismissing an employee due to pregnancy, which is clearly discriminatory and specifically protected under Swiss law. Discrimination can also be based on an employee’s race or ethnic origin, including decisions influenced by biases or stereotypes associated with these attributes.
Age discrimination occurs when an older employee is dismissed solely due to age rather than job performance. Religious discrimination is also prohibited in Switzerland, where freedom of belief and conscience is constitutionally protected. Dismissing an employee because of their religious beliefs or practices would be discriminatory.
Sexual orientation is another protected criterion, making it illegal to dismiss an employee based on their sexual orientation. Additionally, Swiss law safeguards workers’ rights to unionize and engage in union activities. Dismissing an employee for union affiliation or activity is thus considered discriminatory and unfair.
Unfair dismissal for exercising a constitutional right
A dismissal can be deemed unfair if it occurs because the employee exercised their constitutional rights lawfully. In Switzerland, employees’ exercise of constitutional rights is protected and generally cannot be used as grounds for dismissal. These rights include freedom of expression, assembly, and religion. Dismissing an employee for exercising these rights would be unfair. This could involve actions like whistleblowing on illegal or immoral company activities or expressing political opinions that may differ from those of the employer or management.
However, the protection of constitutional rights is not absolute. If an employee exercises these rights in a way that violates the law, disrupts the workplace, or is incompatible with job duties, dismissal may be justified. Jurisprudence indicates that assessing the legitimacy of such a dismissal requires a careful balance of the interests of both the employee and the employer.
Unfair dismissal due to timing
The timing of a dismissal can also render it unfair. Dismissing an employee during a period of vulnerability can lead to the dismissal being considered unfair, with several situations warranting particular attention.
Dismissing an employee during a long-term illness can be problematic, especially if the employee is unable to work and relies on employment for health-related benefits. Swiss law provides certain protections regarding the duration of illness and the timing of dismissal to ensure employees are not unjustly deprived of support at critical moments.
Mandatory military service in Switzerland is another period during which dismissing an employee can be deemed unfair. Given that military service is a legal obligation for many Swiss citizens, dismissing an employee because of this obligation would be unjust and contrary to employment equity principles.
Dismissing an employee after an accident, particularly if work-related, is also sensitive. If an employee is dismissed following an accident that resulted in temporary or permanent work incapacity, the situation must be evaluated carefully, considering factors like the accident’s nature, the potential for reassignment or job adaptation, and the expected duration of incapacity.
Unfair dismissal due to personal reasons
A dismissal may be considered unfair if it is based on personal reasons unrelated to the employee’s job performance or the company’s needs. This could include personal disputes, disagreements with management or colleagues on non-work-related issues, or other personal factors. While employers generally have the right to terminate employment for various reasons, purely personal reasons without work-related relevance complicate the situation. Such dismissals might be viewed as emotional reactions rather than rational business decisions, thus deemed unfair. For example, if an employer dismisses an employee because of a personal altercation outside of work, it could be seen as disproportionate. The key is the relevance of the personal reason to the employee’s job performance. If the dispute does not affect job performance or the company, the dismissal is likely unfair.
Consequences and remedies for unfair dismissal
The consequences of unfair dismissal in Switzerland are significant for both employers and employees. If a dismissal is deemed unfair by a court, the employer may be required 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 compensation depends on various factors, including the employment contract’s duration, the employer’s fault, and the specific circumstances of the dismissal.
For the employee, beyond potential financial compensation, there are specific remedies available for unfair dismissal. The employee must act promptly, typically within 30 days of dismissal notification, to contest it. The employee can seek mediation or conciliation with the employer or take the matter to court for redress. This process can be complex, often requiring assistance from a labor law specialist.
It is important to note that Swiss law generally does not offer the remedy of reinstatement. In other words, even if a dismissal is ruled unfair, the employee is not typically entitled to be rehired. This contrasts with labor law regimes in other countries and underscores the importance of financial compensation as the primary remedy for employees.
