Garden Leave W/O Salary Payments Dismissed - No Need For Internal Disciplinary Proceedings Before A Termination With Cause

Author:Dr. Thomas Rihm
Profession:Rihm Attorneys

The following facts were presented to the highest court in Switzerland: a staff member of a foreign embassy in Geneva had approached two female passport seekers by calling them privately and outside of regular office hours and inviting them - amongst others - for dinner. The second indecent behaviour took place on October 2, 2012, whereby the staff member was called into the foreign consul's offices on October 15, 2012, in order to confront him with the alleged incidents.

"The Swiss Supreme Court ruled that termination with and w/o cause are mutually exclusive."

Only 3,5 months later, on January 31, 2013, the staff member was notified that a disciplinary investigation starts on the same day, whereby a garden leave w/o any salary payments was ordered for the upcoming investigation period which ended on September 13, 2013. A few days later, i.e., on September 17, 2013, as a result of the disciplinary investigation, the staff member was terminated with immediate effect.

The Swiss Supreme Court held that Swiss employment laws provide only for two types of employment terminations, i.e. the ordinary termination by observing the mandatory and/or contractual termination periods under full salary payments or through an extraordinary termination with immediate effect if certain so-called important reasons are given which justify an immediate termination w/o observing the ordinary ternination periods. The highest court in Switzerland then also ruled that these two termination regimes are mutually exclusive. The employer confronted with a more or less massive violation of employee's duties must therefore make a decision whether to issue an ordinary or extraordinary termination which...

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