In Swiss law, an employer may, under certain conditions, withhold part of an employee's salary to recover a claim arising from the employment relationship.
Art. 323a para. 1 CO provides that "As provided by an agreement, custom, standard employment contract, or collective labor agreement, the employer may withhold part of the salary."
This implies that a salary deduction is possible when it is provided for by:
An agreement between the two parties
The practice or custom
A standard employment contract (CTT)
Or a collective labor agreement (CCT)
If one of these conditions is met, the employer may withhold salary to guarantee the following claims:
Compensation for damage caused by the employee (Art. 321e CO)
Compensation for damage resulting from an immediate dismissal justified by the employer (Art. 337b CO)
Compensation for damage resulting from a failure to commence work or abandonment of employment by the employee (Art. 337d CO)
At this point, it is important to clarify the distinction between salary withholding (Art. 323a CO), salary compensation (Art. 323b para. 2 CO), and salary advances (Art. 323 para. 4 CO). Salary compensation is a legal mechanism for extinguishing mutual debts (see the article "Salary Compensation"). A salary advance is the prepayment of part of the salary, which will then be deducted from the monthly salary. Therefore, deducting a salary advance does not constitute a salary withholding under Art. 323a CO.
Art. 323a para. 2 CO sets a limit on the amount of salary withholding, stating that "the withholding must not exceed one-tenth of the salary due on the payday, nor, in total, the salary for one week of work." However, the law specifies that the maximum amount of withholding (i.e., 10% of the salary and, in any case, no more than the equivalent of one week of work) can be modified by a standard employment contract or collective labor agreement.
It is crucial to note that salary withholding serves only as a guarantee. In other words, it does not belong to the employer. Therefore, if the employer does not suffer any damage, they cannot claim a debt against the employee. The employer must return the withheld amounts from the salary by the end of the employment relationship.
To understand the practical implications, an example may be helpful. Suppose an employee terminates their contract immediately. The employer anticipates suffering damage because they might not find a qualified replacement quickly. The employer therefore withholds part of the employee's salary. However, a few days later, the employer miraculously finds a qualified candidate who is immediately available, so the employer will not actually suffer any damage. In such a case, given the guarantee function of salary withholding, the employer will be obligated to return the withheld amounts from the salary.
Parties may, however, agree that salary withholding constitutes a penalty clause (Art. 160 CO). This is a penal clause under which the debtor agrees to provide the agreed performance (usually a sum of money) in case of non-performance or imperfect performance of a specific obligation.
Revisiting the previous example, if the employer has agreed that salary withholdings constitute a penalty clause, then, regardless of whether the employer found a replacement and suffered no actual damage, they will not be required to return the withheld amounts, as they are considered a penalty clause. The employer will only need to demonstrate the breach or non-performance of the contract.
It should be noted that in the absence of a written agreement, Art. 323a para. 3 CO establishes a presumption in favor of the guarantee function of salary withholding. In other words, if there is no written agreement, the employer will have to prove that the salary withholding they made is akin to a penalty clause.
In conclusion, salary withholding is an effective means for the employer to secure the recovery of a claim arising from the employment relationship. However, the law imposes precise formal and substantive conditions.
If you wish to obtain further information or need our support, please do not hesitate to contact the Valentin Legal Consultation (021 351 30 00 or www.cjdv.ch) so that we can assist you with your procedures.
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