Immediate Termination Notice In Lay-Offs With Cause: How Immediate Is Immediate?

Author:Dr. Thomas Rihm
Profession:Rihm Attorneys
 
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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...

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