Unemployment insurance compensates the loss of income for insured persons due to involuntary or voluntary job loss. However, if the job loss results from the insured person's own fault, social law attaches certain consequences.
The competent unemployment insurance authority suspends the right to benefits when it is established that the insured person is unemployed due to their own fault (Article 30 para. 1 letter a of the Federal Act on Compulsory Unemployment Insurance and Insolvency Compensation, hereinafter: LACI). Therefore, the competent authority must impose a suspension of the unemployment benefit without first issuing a warning to the insured person (Bulletin LACI IC, D3).
According to the Ordinance on Compulsory Unemployment Insurance and Insolvency Compensation (hereinafter: OACI), a person is considered unemployed due to their own fault if they, among other things:
By their behavior, in particular by violating their contractual work obligations, provided their employer with a reason for terminating the employment contract (Article 44 para. 1 let. a OACI). Such a suspension does not presuppose an immediate termination of the employment contract for just causes as defined by the Code of Obligations. It is sufficient that the behavior of the insured person constituted a reason for termination (Directive LACI IC D21). For example, if an employee loses their job because they refuse changes to the employment contract imposed by the employer, their right to benefits is suspended, provided that the refused work was still considered "suitable" under Article 16 LACI (Directive LACI IC D19).
Has terminated the employment contract themselves, without having secured another job beforehand, unless it was unreasonable to expect them to keep their previous job (Article 44 para. 1 let. b OACI). A mutual termination of the employment contract between the employer and the employee is considered a termination by the insured person constituting a fault-based unemployment (Directive LACI IC D24).
Has terminated a presumably long-term employment contract and accepted another one that they knew or should have known would be short-term, unless it was unreasonable to expect them to keep their previous job (Article 44 para. 1 let. c OACI).
Has refused a suitable permanent job in favor of a contract that they knew or should have known would be short-term (Article 44 para. 1 let. d OACI).
The listed reasons are not exhaustive, and other reasons may also constitute fault-based unemployment. For example, an insured person who expressly and validly agrees to an early termination of their employment contract that does not respect the legal notice period, or who knowingly refuses to work until the next legal term, does not renounce salary claims but rather the continuation of the employment relationship. They will be suspended from their right to unemployment benefits due to fault under Article 30 para. 1 letter a LACI (Directive LACI IC D29; Cf. ATFA C 135/02 of February 10, 2003).
According to Article 30 para. 2 in fine, it is the cantonal unemployment insurance fund that will decide on the extent of the suspension of benefits.
The suspension period of the right to benefits starts from the first day following the end of the employment relationship when the insured person has become unemployed through their own fault and is executed after the waiting period (Article 45 para. 1 let. a and para. 2 OACI).
The duration of the suspension depends on the severity of the fault. In the case of a minor fault, the suspension is from 1 to 15 days. In the case of a medium fault, the suspension is from 16 to 30 days. Finally, in the case of a serious fault, the suspension is from 31 to 60 days (Article 45 para. 3 OACI). A serious fault occurs when, without valid reason, the insured person leaves a job deemed suitable without being assured of obtaining a new job or when they refuse a suitable job (Article 45 para. 4 OACI).
However, the degree of fault primarily depends on the specific circumstances of the case. Therefore, this scale may be deviated from when the particular circumstances justify it, and the competent authority is not bound by the minimum suspension duration set by this provision for serious faults (Directive LACI IC D73; ATF 130 V 125). For example, the dismissal of a worker respecting the notice periods due to their behavior, particularly the violation of their contractual work obligations, may lead to a suspension of daily benefits where the degree of fault could be minor, medium, or serious.
Finally, when you are subject to such an investigation, the competent authority must respect a fundamental principle, the "right to be heard," under which, before any decision on the suspension of daily unemployment benefits, it must give you the opportunity to express yourself, either in writing or orally (Directive LACI IC, D8).
Would you like more information on this issue? The legal consultation service at Valentin will be happy to welcome you to its offices located at rue du Valentin 1, 1004 Lausanne, to advise you and answer your questions. We are also reachable by phone at 021 351 30 00 and by email at info@cjdv.ch.
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