Abandonment of position

The Swiss Code of Obligations (CO) governs the employment relationship between employers and employees.
It contains the fundamental provisions applying to employment contracts, wages, working hours, vacations, protection against unfair dismissal and other essential aspects of labor relations.
It should be noted that certain industries may be subject to specific laws.

In Switzerland, labor law seeks to reconcile the protection of workers against exploitation, abuse and discrimination with the need for companies to operate efficiently and create jobs.
Thus, labor protection standards are designed in a balanced way to ensure that the rights and interests of workers are safeguarded, while taking into account the needs of employers and the Swiss economy as a whole.

Abandonment of position

Abandonment of post refers to a situation where an employee is absent from work for an extended period of time, without giving notice or justification.
Under Swiss labor law, such conduct is considered a serious breach of the employee’s contractual obligations, and may result in dismissal for just cause.
However, before taking such a decision, the employer must ensure that the employee’s prolonged absence is indeed an abandonment of post.

Under Art.
337d CO, if an employee unjustly leaves work or fails to report for duty, the employer may claim compensation equivalent to one quarter of the employee’s gross monthly salary.
The employer may also claim additional damages if he can prove that he has suffered prejudice as a result of the employee’s absence.
However, the judge has the option of reducing this compensation if the employer suffers no damage, or if the damage caused is less than the compensation provided for by law.
It is important to note that the right to compensation cannot be extinguished by compensation, and must be exercised within 30 days of the date of abandonment or non-entry into service, either by legal action or by prosecution, in order to avoid the right lapsing.

In the event of abandonment of post, the employment contract is terminated immediately, and the employer is not obliged to proceed with formal dismissal.
However, before considering that the contract has been terminated, the employer must ensure that the employee has acted deliberately and irrevocably to end the employment contract.

An employee may terminate his or her employment contract explicitly or tacitly by expressing his or her wish to leave.
This willingness can be demonstrated by conclusive acts such as unjustified absence from work for several months.
If the employee makes an express declaration, although this is rare, the employer does not need to terminate the employment contract, but it is advisable to confirm in writing that the employee has abandoned his or her job and that the employment contract has ended.
On the other hand, if the employee makes a tacit declaration, it is necessary to assess whether the employer could reasonably have understood that the employee intended to definitively leave his employment.

It is important to note that if an employee is absent for health reasons and does not provide a medical certificate, the employer cannot automatically consider that the employee has abandoned his or her job without first asking the employee to return to work or to provide a medical certificate.
Furthermore, if the employee’s absence is of short duration, he or she cannot be considered to have abandoned his or her job without a thorough analysis of the circumstances.
However, if the employee fails to meet his contractual obligations, this may lead to immediate termination for just cause under art.
337 CO, but only after a warning.

An appropriate example is when an employee temporarily refuses to work because of anger.
In such a situation, if the refusal is of short duration and the employer is able to see that it is only a temporary refusal, the employer cannot conclude that the employee has abandoned his or her position.
However, if the employee’s absence extends over several months, the employer may consider that the employee has abandoned his or her job and no longer wishes to continue the working relationship.

If the employee is absent for several months without justification, the employer may consider that the employee has abandoned his or her job and dismiss for just cause.

In short, abandonment of post is a delicate situation that requires a cautious approach on the part of employers and employees alike, as it can have serious repercussions on the employment relationship.