In Swiss law, the basic principle is freedom of termination. This means that parties can freely terminate the contract while respecting notice periods, even without justification or a specific reason. The exception to this rule is protection against wrongful dismissal as outlined in Articles 336 et seq. of the Swiss Code of Obligations (CO). These protective provisions stem from the principle of prohibition of abuse of rights.
Termination is considered wrongful, among other things, when it is based on one of the reasons specified in Article 336(1) CO. However, the list provided in Article 336 CO is not exhaustive, and abuse of the right to terminate an employment contract can also occur in other situations that are comparable, in terms of severity, to the cases explicitly mentioned in Article 336 CO.
For example, termination is considered wrongful when it is based on a failure of the employer to meet their own obligations.
First and foremost, it is important to know that the employer is required to respect and protect the employee's personality (Article 328 CO). Psychological harassment is therefore prohibited. Article 328 CO creates a specific responsibility for the employer for acts that may be committed by third parties (e.g., officials or auxiliary personnel).
According to case law, invoking one’s own behavior contrary to the law is a typical case of abuse of rights. Therefore, a termination will be deemed wrongful if it is issued to an employee due to a decline in their performance related to a situation of psychological harassment. This is because an employer who tolerates such a situation violates their duties under Article 328 CO and cannot justify the termination with the consequences of their own failure to fulfill their obligations. Indeed, "An employer who fails to prevent moral harassment violates their duty of care (Article 328 CO). They cannot therefore justify termination with the consequences of their own breach of the contract."
Another scenario in which case law considers termination to be wrongful due to a failure by the employer to meet their own obligations is when an employee is terminated due to an interpersonal conflict without the employer having previously taken the reasonable steps expected to defuse the conflict. Indeed, since the employer has the duty to protect employees' personalities, they must intervene to mitigate the conflict. If they terminate the contract while citing the disturbance caused by the conflict without having previously taken other measures, the termination is abusive.
Further details to follow.
Author: Fjolla Katana.
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