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20 December 2017
A pilot was immediately terminated by his employer after lying about his absence from work using a false medical certificate. The Bulach District Court and the Supreme Court both rejected the pilot's unfair dismissal claim.
The pilot and his fiancé – a flight attendant with the same airline – had previously turned down several invitations to family gatherings in South America. In Summer 2014 they were invited to a baptism. Due to the short notice of the invitation, the pilot assumed that he would be unable to submit a holiday request in time. Nevertheless, the couple booked two standby tickets, allegedly in the hope that they would be off work in the days surrounding the baptism. Despite being scheduled to work, the pilot, who had suffered from gastroenteritis two weeks before, extended his sick leave and reported a relapse just before the baptism; his fiancé informed her supervisor that she was ill. The couple flew to South America.
Three days after the baptism, the couple returned to work in Switzerland. However, the employer grew suspicious and asked the pilot and his fiancée to be medically examined. The pilot concealed the fact that he had not been convalescing at home and maintained this position in subsequent disciplinary proceedings.
In a personal conversation with his supervisor and a human resources representative, the pilot confessed that the couple had flown to South America as they had felt an obligation towards their relatives. The pilot was dismissed with immediate effect and given three months' sick pay; his fiancé was similarly terminated.
Despite a written objection by the pilot, the employer upheld the termination. The pilot challenged the company at the Bulach District Court on the grounds of unfair dismissal, alleging that by issuing a formal warning letter followed by a technical dismissal warning, his employer had not complied with the three-stage dismissal procedure stipulated in the collective bargaining agreement. Further, he asserted that his employer had a burden of proof to demonstrate that the illness had been faked and that a serious breach of duty had been committed.
Neither the Bulach District Court nor the Supreme Court admitted the pilot's defence. The Supreme Court considered the absence of gastrointestinal disease to have been proven and held that collective bargaining agreements allow termination without notice in the event of gross breach of contract – namely, if the terminating party can no longer reasonably be expected to continue the employment relationship in good faith.
According to both courts, pilots should be entirely trustworthy and inspire total confidence in light of their occupational responsibilities. However, in this instance, "the multiple lies and untrue factual representations were not only morally disturbing, but also seriously violate[d] the contractual obligation of fiduciary duty".
The Supreme Court also denied the pilot's request for appropriate compensation of at least Sfr100,000 for unfair dismissal.
The pilot has requested additional review from the Federal Supreme Court.
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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