Dismissal in Switzerland: When Is It Unfair?

Freedom of Termination

Swiss employment law rests on freedom of termination: either party may terminate respecting the notice period, without needing to state reasons (art. 335 para. 1 CO). Unlike French or German law, there is no general protection against dismissal.

Two limits: abusive dismissal (art. 336 CO) and dismissal at an inopportune time (art. 336c CO).

Abusive Dismissal (art. 336 CO)

Non-exhaustive list of abusive grounds:

1. Personal characteristic (race, sex, family status, etc.) unless related to work (let. a)
2. Exercise of a constitutional right (let. b)
3. Preventing the accrual of claims (let. c)
4. Retaliation for asserting contractual claims (let. d)
5. Military/civil service (let. e)

The Federal Supreme Court has expanded this: dismissal violating personality (ATF 132 III 115) or conducted in a brutal, humiliating manner is abusive.

Compensation (art. 336a CO)

Maximum six months' salary (art. 336a para. 2 CO). In practice, rarely exceeds two to three months. Important: abusive dismissal is not void. It takes effect but gives rise to compensation. No right to reinstatement.

Procedure

Written Objection (art. 336b para. 1 CO)

The employee must object in writing before the end of the notice period. Without objection, the court action is inadmissible.

Action Deadline (art. 336b para. 2 CO)

180 days after the end of the employment contract. Forfeiture deadline.

Prior Conciliation

Mandatory conciliation (art. 197 CPC). Free for disputes up to CHF 30,000 (art. 113 para. 2 let. d CPC).

Burden of Proof

The employee must prove the abusive character. The Federal Supreme Court allows an eased burden: the employee renders the abusive motive plausible, then the employer must demonstrate a legitimate reason (ATF 130 III 699).

Discriminatory Dismissal (GEA)

Art. 10 GEA: a dismissal based on gender discrimination is voidable if the employee acts during the notice period. Otherwise, up to six months' compensation (art. 5 para. 2 and 4 GEA).