Remuneration is a fundamental element of the employment contract (Article 319 CO). According to Article 322 CO, the employer is obligated to pay the agreed, customary, or contractually fixed salary or salary determined by a collective agreement. This payment must be made at the end of each month as compensation for the work performed by the employee, unless otherwise specified (Article 323(1) CO).
In case of a breach of this obligation by the employer, the employee can initiate a legal action to claim the salary. The claim can cover various types of remuneration stipulated in the contract, including:
In-kind salary
Overtime
Thirteenth salary
Entitlement to a share of the operating results (Article 322a CO)
Advance payments (Articles 322b and 322c CO)
Bonuses (Article 322d CO)
Salary in case of work incapacity (Article 324 CO)
Salary during vacation (Article 329d CO)
Thus, once the salary claim becomes due, the employee or any third party to whom the claim has been assigned can initiate enforcement proceedings against the employer (Article 38(1) LP). The claim may include the gross amount.
Regarding the procedure, three types are applicable (summary procedure, ordinary procedure, and simplified procedure) depending on the value of the claim or the clarity of the case. However, the conciliation authority is involved first, unless the claimant opts for a clear case. The claimant receives permission to proceed only if the conciliation attempt fails. The claim can be filed within three months of the receipt of the claim (Article 209(3) CPC) at the court of the domicile or place of business of the defendant (Article 35(1)(d) CPC) or at the location where the employee usually performs their work (Article 34(1) CPC).
Do you have any questions? Our team of professionals will be pleased to welcome you to our offices located at rue du Valentin 1, 1004 Lausanne, to provide more detailed answers.
Written by Najat ABUKAR
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