Understanding one's rights and obligations is crucial for both employers and employees, particularly when a dispute arises before, during, or after the employment contract relationship.
1. Competence
A court can only adjudicate a dispute if it is competent to do so. Competence is threefold: territorial (ratione loci), material (ratione materiae), and functional (ratione personae). Material and functional competence are mainly governed by the cantonal judicial organization (Art. 4 CPC).
Territorial Competence (ratione loci): This refers to the courts that are territorially competent to hear a specific dispute. In labor law, it is governed by Art. 34 CPC. Actions must be filed with the court of the domicile or seat of the defendant or the court where the employee habitually performs their work. This is a semi-mandatory and alternative forum.
The habitual place of work is determined by the specific circumstances of the case and is where the center of the employee’s work activity is located. A temporary workplace does not create a forum. If there are multiple workplaces, the main place of activity is determined (Federal Supreme Court decision 4A_236/2016 of August 23, 2016).
It is not possible to contractually deviate from the legal forum before a dispute arises or by tacit acceptance, to the detriment of the employee (Art. 35 CPC). In other words, if a forum is specified in the contract, it is binding on the employer but cannot be imposed on the employee. If the employee files a claim in another forum (neither legal nor contractual), it is valid if the employer does not object.
Material Competence (ratione materiae): This refers to the courts competent based on the subject matter. Cantons have some freedom in judicial organization and may have ordinary and specialized courts. The cantons of Vaud and Geneva each have specialized courts. Disputes arising from private labor contracts fall under the material competence of the Labor Court (Tribunal des prud’hommes).
Geneva and Vaud exclude the material competence of this court for disputes arising from public law employment relations.
In Geneva, state employees must address disputes to the Administrative Court of First Instance (Art. 1 para. 2 LTPH, Art. 27 et seq. LPAC, Art. 116 LOJ).
In Vaud, disputes related to the application of the Cantonal State Personnel Act and the Federal Gender Equality Act (Leg) fall under the exclusive competence of the Labor Court of the Cantonal Administration, regardless of the value in dispute (Art. 14 para. 1 LPers-VD).
Functional Competence (ratione personae): This determines the courts competent to hear successive stages of the same case (conciliation, first instance, appeal). Some cantons also have different first-instance competencies based on the value of the dispute.
In Vaud, if the value in dispute does not exceed 30,000 francs, competence lies with the Labor Court. For disputes exceeding 30,000 francs but not exceeding 100,000 francs, the District Court is competent. For disputes exceeding 100,000 francs, the competent court is the Cantonal Chamber of Property.
In Geneva, the Labor Court is competent regardless of the value in dispute.
2. Organization
The canton of Vaud has four Labor Courts, part of the District Court, and a Labor Court of the Cantonal Administration (TRIPAC). The Labor Court is composed of a president of the District Court, one or more vice-presidents, judges representing employers and employees, the clerk, deputy clerks, and court officials (Art. 6 LJT).
Geneva has a single Labor Court and a Labor Court chamber at the Court of Justice. The Labor Court jurisdiction consists of conciliators and 190 judges, including 36 presidents, as well as judicial staff.
Judges are "lay judges," meaning they are not career magistrates.
3. Representation and Assistance
There is no general obligation to be represented by a registered lawyer. According to Art. 68 para. 2 let. d CPC, professionally qualified representatives are allowed to represent a party before special labor courts when cantonal law permits.
In Vaud, Art. 36 para. 3 of the Vaud Code of Judicial Procedure allows representatives of trade unions or employer associations to represent parties before the Labor Courts.
Similarly, in Geneva, the law permits representation under Art. 15 of the law applying the Swiss Civil Code and other federal civil laws (LaCC). Professionally qualified representatives can assist or represent parties before the Labor Court and the Labor Court chamber of the Court of Justice. A member of our legal consultation team is thus authorized by law to represent and defend clients in this context.
Additionally, any individual who must initiate or defend a procedure and who cannot afford the related costs (lawyer’s fees, court fees) may request legal aid in civil matters. This right is granted if the individual lacks sufficient resources and if their case is not devoid of any chance of success (Art. 117 CPC). It is important to note that this aid is not free and must be reimbursed to the canton (Art. 123 CPC).
4. Court Fees
Before starting a procedure, it is important to know that court fees are charged unless the law provides for exemption. Upon filing a request, an advance payment of court fees is required from the initiating party. The advance covers the total anticipated court fees. If the advance is not paid within the deadline, the case is removed from the docket, meaning the procedure stops. Generally, the losing party must reimburse the winning party for all necessary litigation costs, including court fees and expenses.
4.1 Court Fees
Court fees mainly include the flat-rate fee for conciliation and decision, set based on the value of the dispute, the nature, scope, and difficulty of the case (Art. 4 TFJC), as well as evidence administration costs and, if applicable, translation costs. The tariff for court fees is determined by the cantons (Art. 96 CPC).
Federal law stipulates that no court fees are charged for disputes involving a labor contract where the value in dispute does not exceed 30,000 francs.
In Vaud, the flat-rate fee for conciliation is set as follows (Art. 15 and 17 para. 2 TFJC):
In Vaud, the flat-rate fee for decision in ordinary proceedings is set as follows (Art. 18 TFJC):
In Geneva, the flat-rate fee for conciliation is set as follows (Art. 15 RTFMC):
In Geneva, the flat-rate fee for decision is set as follows (Art. 69 RTFMC):
4.2 Expenses
Expenses mainly include contributions to lawyer or representative fees and are awarded to the winning party.
In conciliation proceedings, federal law provides that no expenses are awarded (Art. 113 para. 1 CPC).
In substantive proceedings:
In Vaud, the tariff for expenses in civil matters is outlined in a decree from the Cantonal Court (cf. TDC; RS-VD 270.11.6).
In Geneva, Art. 22 para. 2 LaCC states that no expenses or compensation for legal representation are awarded in cases subject to the Labor Court jurisdiction.
5. Procedure
5.1 Conciliation Procedure
Substantive proceedings must be preceded by a conciliation attempt before a conciliation authority (Art. 197 CPC), except for exceptions listed in Art. 198 CPC.
If the conciliation attempt succeeds, the conciliation authority records a settlement, acquiescence, or withdrawal of action, which has the same effect as a final judgment. In other words, the agreement has the value of a judgment.
If the conciliation attempt fails, the conciliation authority issues a permit to proceed. This starts a three-month period for filing a claim with the competent court.
Furthermore, the conciliation authority may, at the request of the claimant, decide on the merits in disputes with a value not exceeding 2,000 francs (Art. 212 CPC). This decision can be contested.
5.2 Substantive Procedure
The substantive procedure is initiated by the holder of the permit to proceed before the competent court by filing a request (Art. 221 CPC). This leads to the actual trial, during which the parties can present evidence and request the hearing of witnesses relevant to their case.
The substantive procedure can be ordinary, simplified, or summary.
The ordinary procedure applies by default to civil cases. It is initiated by filing a brief that includes the claims, the value of the dispute, factual allegations, and the evidence proposed for each allegation. The court may order additional written exchanges and hearings. Legal assistance is generally advised due to the formality of this procedure.
The simplified procedure applies to claims with a value not exceeding 30,000 francs and all disputes under the March 24, 1995 Equality Act. It is characterized by the absence of formality and by the judge’s active role in fact-finding. The claim filed with the court is simplified (Art. 244 CPC).
The summary procedure is applied in certain situations where it is necessary or possible to resolve the dispute quickly. Conciliation is not required by law in such cases. In labor law, the summary procedure applies notably to “clear cases,” meaning where facts are undisputed or can be immediately proven, and the legal situation is clear. The procedure is initiated by a simple request to the court’s registry (Art. 252 CPC).
If you need further legal information on this matter, please do not hesitate to contact the Valentin Legal Consultation. We would be delighted to assist you at our office or provide our online services. You can also reach us by phone at 021 351 30 00 or by email at info@cjdv.ch.
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