Wrongful dismissal

Unfair dismissal remains a key issue in Swiss employment law.
In this country, terminating a worker’s employment must always comply with well-defined criteria, and any transgression of these criteria can lead to a qualification as unfair dismissal.
This term refers to dismissal in circumstances which, according to the principles of good faith, do not justify termination of the employment contract.

Swiss legislation seeks to strike a subtle balance between protecting the rights of employees and granting flexibility to employers.
Nevertheless, determining precisely what constitutes unfair dismissal can prove complex, regularly forcing Swiss courts to intervene to clarify the fundamentals of the issue.

Conditions for unfair dismissal

The concept of unfair dismissal in Switzerland is multifaceted and complex, defined primarily by Article 336 of the Swiss Code of Obligations.

Wrongful dismissal due to discrimination

Discrimination in the context of dismissal remains a major concern in Swiss employment law.
Unfair dismissal occurs when the decision to terminate employment is motivated by discrimination, and this can take many forms.

For example, discrimination on the grounds of gender can manifest itself in the dismissal of an employee because of her pregnancy, a clearly discriminatory action specifically protected by Swiss law.
Similarly, discrimination can be linked to an employee’s race or ethnic origin, particularly when dismissal decisions are based on prejudice or stereotypes associated with these characteristics.

Age is another area where discrimination can occur, for example, when an employee’s age is the sole reason for dismissal, regardless of his or her ability to perform the job.
In Switzerland, discrimination on the grounds of religion is also prohibited, as the Constitution guarantees freedom of belief and conscience.
Consequently, dismissing an employee because of his or her religious beliefs or practices is considered a discriminatory act.

What’s more, in Switzerland, workers’ rights to join a trade union and take part in union activities are protected.
Thus, dismissing an employee because of union membership or involvement in union activities is considered discriminatory and abusive.

Wrongful dismissal due to the exercise of a constitutional right

Dismissal may be deemed unfair if it is based on an employee’s legitimate exercise of his or her constitutional rights.
In Switzerland, the exercise of these rights is protected and generally cannot be used as grounds for dismissal.
These rights include freedom of expression, freedom of assembly, freedom of religion and other fundamental rights.
However, this protection is not absolute, as dismissal may be justified if the exercise of these rights violates the law, disrupts the workplace or conflicts with the employee’s obligations.

Wrongful dismissal due to timing

The timing of a dismissal can also determine its abusive nature.
Dismissing an employee when he or she is in a vulnerable situation can be considered abusive, and certain situations require special attention.

For example, dismissing an employee during a long period of illness can be problematic, especially if the employee is dependent on his or her job for access to health benefits.
Swiss law offers specific protection with regard to the duration of illness and the point at which dismissal can be legitimately carried out, to ensure that the employee is not unfairly deprived of support during a critical period.

Compulsory military service in Switzerland is another period during which terminating an employee’s employment may be considered abusive.
Given that military service is a legal obligation for many Swiss citizens, terminating an employee’s employment because of this obligation would be manifestly unfair and at odds with the principles of fair employment.

Dismissal following an accident, particularly if work-related, is also a delicate situation.
The assessment of the situation must take into account the nature of the accident, the possibility of reassignment or adaptation of the position, and the expected duration of the incapacity.

Wrongful dismissal for personal reasons

A dismissal may be considered unfair if it is motivated by purely personal reasons that have no connection with the employee’s ability to perform his or her job or the needs of the company.
This may include personal disputes unrelated to work, disagreements with management or colleagues on non-professional matters, or other personal factors.

However, it is essential to recognize that the employer generally has the right to terminate an employment contract for a variety of reasons.
When these reasons are purely personal and do not affect the employee’s ability to perform his or her job or the company in a negative way, the dismissal may be considered unfair.

Consequences and remedies for unfair dismissal

The consequences of unfair dismissal in Switzerland are severe for both employer and employee.
If a dismissal is deemed unfair by a court, the employer may be required to pay compensation to the employee, in accordance with Article 336a of the Swiss Code of Obligations.
The exact amount of this compensation depends on various factors, including the length of the employment contract, the employer’s fault and the circumstances of the dismissal.

For the employee, in addition to the possibility of financial compensation, there are specific remedies in the event of unfair dismissal.
It is crucial that the employee acts quickly, as there is a 30-day time limit from notification of dismissal to contest the decision.
The employee can seek mediation or conciliation with the employer, or take the matter to court to seek redress.
This can be a complex procedure, often requiring the assistance of a lawyer specializing in employment law.

It is important to note that, in general, Swiss law does not offer the possibility of reinstatement.
In other words, even in the event of dismissal deemed unfair, the employee generally has no right to be rehired.
This difference with other employment law regimes highlights the importance of financial compensation as the employee’s main remedy.