In Swiss law, the principle is freedom of termination. The exception is the protection against abusive dismissal provided for in Articles 336 et seq. CO (Swiss Code of Obligations). Article 336 CO does not define abusive termination but instead enumerates eight specific circumstances that constitute abusive dismissals.
Letter d of Article 336 para. 1 CO specifically addresses retaliatory dismissal. According to this provision, dismissal is considered abusive if it is given by one party (the employer) because the other party (the employee) asserts claims arising from the employment contract in good faith. This requires the fulfillment of four conditions.
Firstly, the party who received the dismissal must have made claims. Secondly, these claims must arise from the employment contract. For example, this could include claims related to wages, bonuses, vacation, or claims concerning personal protection. Furthermore, the recipient of the dismissal must have acted in good faith. This means that the claim must not be vexatious or reckless.
Moreover, the claim does not need to be legally founded, as it is sufficient that the worker is legitimately, in good faith, convinced that it is. In this regard, good faith is presumed (Art. 3 para. 1 CC). Finally, there must be a causal link between the assertion of the claim and the dismissal. Generally, dismissal is also considered abusive if it is given to the worker because they have, in good faith, complained about a violation of their right to personal respect or health. For instance, dismissal would be considered abusive if it occurs following a claim by the employee that the employer take appropriate measures against passive smoking.
To take another example, case law indicates that dismissal is considered abusive if it is given to an employee following a request for a salary increase, even if they had systematically received such an increase in previous years. Indeed, the employee could have in good faith believed they were entitled to a salary increase. Therefore, dismissal following such a request is considered abusive.
Regarding the consequences of retaliatory dismissal, it should be noted that the dismissal is valid even if it is abusive, meaning that the worker has no right to reinstatement. The only remedy is the payment of compensation (Art. 336a para. 1 CO). The judge sets this compensation based on all the circumstances of the case. In all cases, the compensation cannot exceed the amount corresponding to six months' salary (Art. 336a para. 2 CO).
If you wish to obtain more information on this matter, our team of professionals would be delighted to welcome you to our offices at rue du Valentin 1, 1004 Lausanne, to advise and assist you with your legal inquiries. We are also reachable by phone at 021 351 30 00 and by email at info@cjdv.ch.
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