The termination of an employee with cause and without observing a notice period notice must meet various conditions under Swiss employment laws. The general rule is: a dismissal based on important grounds is then justified if it unbearable for the employer to reasonably continue the employment relationship until the next possible ordinary termination date. In addition, more lenient means should not be available to the employer in order to remedy the disturbed employment relationship in a different and more reasonable manner.
It is also instrumental that the employer pronounces the dismissal without any further delay. Employers quite often fail in court when trying to demonstrate that their dismissal was in time, so employers are well advised to make sure that they are doing so in a timely manner before taking an emergency brake on a work relationship.
"An employer waiting for too long indicates that the continuation of the employment relationship until the next regular termination date continues to be acceptable."
A dismissal without notice shall be made as soon as the employer is aware of the major important grounds. Otherwise, the employer's right for termination w/ immediate effect is forfeited. In other words, an employer waiting for too long indicates that the continuation of the employment relationship until the next regular termination opportunity continues to be acceptable.
Before an employer decides to terminate w/o notice, he should carefully examine the facts allowing such notice. If a material suspicion exists which could justify an employee's immediate dismissal, the employer must undertake asap all reasonable and permissible investigations to obtain clarity. Serious accusations, for example relating to financial misdeeds or sexual harassment, must be clarified quickly and in a determined, but also cautious and unbiased manner. In particular, the employer shall ensure that the suspected employee is not unduly damaged in his reputation. The employer may have to make the investigations secretly or by an outside party, in particular law enforcement authorities.
"According to case law in Switzerland, a decision making period of up to three working days is generally considered appropriate."
As soon as an employer obtains a somewhat secure and complete knowledge of the important reasons for the dismissal, he or she must decide whether to use the right to terminate the work contract immediately. According to case law in Switzerland, a consideration period of up to three working days is generally considered appropriate.
The consideration period serves the employer to obtain legal information and to weigh the advantages and disadvantages of an immediate lay-off. According to an abstract formulation of the Swiss Supreme Court, "delays exceeding two to three days are only permissible if, with regard to the practical requirements of business life, they appear to be understandable and justified."
"Larger multinational companies, in which the decision to terminate w/o notice is up to a multi-headed corporate organ consisting perhaps of foreigners is entitled to a longer decision making process of up to one week."
A larger, perhaps also multinational company, in which the decision to terminate w/o notice is up to a multi-headed corporate organ consisting perhaps of foreigners is usually entitled to a longer decision making process of up to one week. This is also the case if employees' representatives must be heard before coming to a decision.
The Federal Supreme Court does not grant any extended consideration period if the allegations are clear from the outset and any further investigation only serves to determine whether the allegation are indeed true. In this case, the employer is expected to consider the matter already during the clarification phase and decide how it will react when the allegations are confirmed. Furthermore, a larger company is expected to organize itself in a way which allows to make the necessary decisions even if not all competent management members are present.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
