Unilateral contract modification (Änderungskündigung) involves one party to the contract (usually the employer) unilaterally altering the contract conditions in its favor, under the threat of terminating the employment contract if the modifications are not accepted. This type of modification is typically characterized by a reduction in salary and/or changes in working hours (DTA 2008 p. 249). Consequently, employers use unilateral contract modifications not to terminate employment relationships but to pressure the employee into accepting contract changes (DTA 2008 p. 252).
The employer’s right to unilaterally terminate the contract is restricted by the provisions on abusive termination, specifically Articles 336 et seq. CO (ATF 4A_748/2012, para. 2.2).
Federal Court jurisprudence states that a unilateral modification is deemed abusive if the employer dismisses the employee for refusing contract changes that were to take effect before the termination notice period expired (ATF 4A_539/2015, para. 3.2). In this scenario, the dismissal is considered abusive under Article 336 para. 1 let. d CO because it is implied by the terms of the employment contract that the employee has the right to refuse unilateral changes before the contract’s end. Therefore, if the employee’s refusal before the expiration constitutes the reason for dismissal, the termination is abusive as the contract obliges the employer to provide the same conditions until the contract expires (ATF 4A_539/2015, para. 3.2; judgment 4C.317/2006 of January 4, 2007, para. 3.5).
Furthermore, dismissing an employee with the intent to unilaterally modify the contract without substantial justification is considered abusive (JdT 1998 I p. 300, para. 3 let. a).
Thus, an offer to modify the contract is deemed abusive in the absence of a justificatory reason, meaning it is not objectively justified (DTA 2008 p. 259). A unilateral modification will also be considered abusive if, although necessary, it is disproportionate in relation to the interests at stake (DTA 2008 p. 259; SJ 2006 I p. 32).
An offer to modify the contract is systematically abusive if it violates mandatory legal rules (DTA 2008 p. 260). Thus, a contract modification offer that breaches mandatory provisions of Articles 361 and 362 CO, the principle of equal treatment (Article 328 para. 1 CO), or gender equality provisions under the Leg is always considered abusive (DTA 2008 p. 260).
Regarding the implementation of unilateral contract modifications, some legal scholars argue that the offer is abusive if it provides a short reflection period that does not allow the employee to make an informed decision. According to Federal Court jurisprudence, a period of approximately two weeks is deemed sufficient for the employee to make an informed decision (TF, judgment 4C.317/2006 of January 4, 2007). However, some scholars argue that the reflection period should be at least 3-4 weeks to allow the employee adequate time to decide (DTA 2008 p. 261).
If you wish to obtain more information on this subject, the Valentin Legal Consultation would be pleased to welcome you to its offices located at rue du Valentin 1, 1004 Lausanne, for a more comprehensive response. You can also reach us by phone at 021 351 30 00 or by email at info@cjdv.ch.
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