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Termination of employment in the private sector

Aug 31, 2021.

Have you been let go and are wondering what to do now? We are keen to help you. We have therefore compiled the most important information for you here. You can also find some helpful template letters in our download area.

You first need to clarify what situation you find yourself in:

 

REGULAR TERMINATION

In general, the principle of “freedom to terminate” applies to employment relationships under Swiss private law. This means that both the employee and the employer are free to terminate the employment contract at any time and by serving the regular notice period. This is the norm and, in most cases, it suits both the employer and the employee.

 

If you are an employee and you want to terminate your employment contract, you can use our simple template letter [A406].

 

The notice period can be found either in the employment contract, the framework agreement, the collective employment contract (if applicable) or, last but not least, in the Code of Obligations (Article 335c OR).

 

You will normally carry on working up to the end of the notice period. In some instances, the employer will relieve you of your duties for all or part of the notice period. However, in both cases, you will still be entitled to your salary throughout the notice period. Holidays and overtime may be compensated by a leave of absence.

 

WRONGFUL TERMINATION

In exceptional cases, the law will consider the termination to be wrongful, namely if the reason for termination is one of those listed in Art. 336 para. 1 and 2 OR. An example of wrongful termination would be if you have accumulated a lot of extra hours and you ask for them to be paid out, but your employer responds by terminating your employment contract. This is known as revenge termination.

 

A wrongful termination is still valid, but it results in an obligation on the employer’s part to provide compensation. Unfortunately, wrongful termination is often very difficult to prove. If you have enough evidence to suggest that the termination was wrongful, you can use our template letter[A404]  and appeal against it.

 

INVALID TERMINATION

Termination by your employer during pregnancy, maternity leave or military service is invalid.

 

In the event of illness or an accident, you are protected from dismissal for a certain amount of time. The length of the period will depend on how many years you have been working for your employer (see Art. 336c OR). Your employer cannot dismiss you during this blocking period. If they do so anyway, you must inform them that the termination is invalid.

 

Our template[A402]  will help you write this letter.

 

TERMINATION WITHOUT NOTICE

Termination without notice means termination with immediate effect and no notice period. The entitlement to a salary ends immediately. It is very rarely justified. Namely, only if the employee’s conduct ruins the relationship of trust between them and the employer to such an extent that continuation of the employment relationship can no longer be reasonably expected.

 

Examples include:  criminal activities in the workplace; repeated or general refusal to work; working with a competitor; disclosing trade secrets; accepting bribes; assaulting or insulting superiors or colleagues; sexual harassment in the workplace. To determine whether the misconduct was serious enough, the situation must always be considered on a case-by-case basis.

 

If there are any doubts about whether the termination without notice was justified, use our template letter[A403]  to contest it in writing and demand written justification from the employer.

 

TIPS

Whether regular termination or termination without notice: we recommend that you request written justification for the termination. This document could be useful to you if you appeal against the termination.

 

When contesting the termination, be aware of the response deadlines. In the case of termination with notice, you can contest the termination up to the end of the notice period. In the case of termination without notice, you must respond within a maximum of three days of being notified of the termination.

 

In any case, we recommend that you start looking for work and register with the regional employment office (RAV) immediately after being released. Otherwise, the unemployment insurance fund could reduce your unemployment benefit.

 

If you have any further questions, please do not hesitate to contact us. We are happy to advise you on legal matters.

About the author

“Being let go can be a heavy burden both psychologically and financially. Numerous questions arise in this situation. It is therefore crucial to know the basics in order to react in the right way. Even the ‘freedom to terminate’ principle that applies in Switzerland has its limits.”

 

Jennifer Couto, Lawyer at Fortuna Legal Protection Insurance

Jennifer Couto, a lawyer at Fortuna, has been a legal consultant since January 2020. In her day-to-day work, she develops pragmatic solutions in many fields of law, such as tenancy, employment and consumer law. She is also responsible for coordinating projects aimed at improving the customer experience.

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