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02 August 2017
The termination of an employee with cause and without observing a notice period must meet various conditions under Swiss employment law. Generally speaking, a dismissal based on serious grounds is justified if the employer cannot reasonably sustain the working relationship until the next possible ordinary termination date. Further, the employer must not have more lenient and reasonable means available to remedy the working relationship and must notify the employee of the dismissal immediately. As employers quite often fail to prove in court that the dismissal was timely, the termination should be announced without delay.
A dismissal without notice should be made as soon as the employer is aware of the grounds for termination, otherwise the employer's right to terminate with immediate effect is forfeited. In other words, an employer that waits too long is indicating that the continuation of the working relationship until the next regular termination opportunity is acceptable.
Before an employer decides to terminate an employee without notice, it should carefully examine the facts. If a material suspicion exists which could justify an employee's immediate dismissal, the employer must immediately undertake a reasonable and permissible investigation to obtain clarity. For example, serious accusations relating to financial misdeeds or sexual harassment must be clarified quickly and in a determined, cautious and unbiased manner. In particular, the employer must ensure that the reputation of the employee under suspicion is not unduly damaged. The employer may have to conduct the investigation secretly or have it conducted by a third party (eg, law enforcement).
When an employer obtains reasonably secure and complete knowledge of the grounds for dismissal, it must decide whether to use the right to terminate the employment contract immediately. According to Swiss case law, a consideration period of up to three working days is generally considered appropriate.
The consideration period allows the employer to obtain legal information and to weigh the advantages and disadvantages of an immediate dismissal. According to the 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 companies – such as multinational companies in which the decision to terminate without notice is made by a multi-led, potentially international corporate body – are usually entitled to a longer decision-making period of up to one week. This also applies where an employee's representatives must be heard before a decision is made.
The Federal Supreme Court does not grant any extended consideration period if the allegations are clear from the outset and any further investigation serves only to determine whether the allegations are true. In this case, the employer is expected to consider the matter during the clarification phase and decide how it will react when the allegations are confirmed. Larger companies are expected to have structures in place which allow these decisions to be reached where not all competent management members are present.
For further information on this topic please contact Thomas Rihm at Rihm Rechtsanwälte by telephone (+41 44 377 77 20) or email (firstname.lastname@example.org). The Rihm Rechtsanwälte website can be accessed at www.rihm-law.ch.
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