Can I lose my job if I take part in a parade?

Can I lose my job if I take part in a parade?

I read with interest your recent column on the criteria for a strike to be considered legal. I've always been reluctant to take part in marches organised by my union for fear of being sacked: what exactly am I risking?

C. Geneva

We need to distinguish between the situation of an employee taking part in a lawful strike, according to the criteria mentioned in these columns last week, and that of an employee who goes on strike without meeting the conditions set out in the Swiss Constitution.

In the first case, it should be remembered that the employer is not obliged to pay wages for the entire duration of the lawful strike, as the employee is released from his obligation to perform his work. On the other hand, the other obligations arising from the employment contract remain in full force.

It follows that participation in a lawful strike does not terminate the employment relationship and cannot be grounds for dismissal with immediate effect, in particular for abandonment of post. Nor is it a permissible reason for ordinary termination of the employment relationship, i.e. within the time limits stipulated in the contract. In fact, under Swiss law, a notice of termination is considered unfair if it is given by one party because the other party is exercising a constitutional right - such as the right to strike - provided, of course, that it complies with the rules.

Fortunately, however, an employee's participation in an illegal strike does not automatically lead to dismissal. In such cases, the validity of the dismissal will depend on the specific circumstances, in particular whether the employer can really no longer be expected to continue the employment relationship. This question must be examined from the perspective of good faith, taking into account the duration of the strike and whether or not the employee is aware that his or her action is unlawful.

Thus, an employer who considers that its employees are illegally on strike must warn them, ordering them to return to work and warning them of the risk of dismissal if they do not comply.

It is therefore advisable to obtain clear information from a lawyer or a trade union as to whether a proposed strike is lawful, because not all protest marches and parades are lawful under the law. In this respect, we have seen that the "women's strike" is not a strike under labour law, and neither are the various "climate strikes", however useful these social movements may be in everyone's opinion.

An employee's participation in the famous May Day parade is treated even differently: it is neither a strike in the legal sense, nor a public holiday in Geneva (unlike in other cantons), but a day off. In other words, employers are obliged to allow their employees to demonstrate on "Labour Day" if they wish, by virtue of their freedom of expression. On the other hand, an absent employee will not be entitled to his or her wages, unless otherwise stipulated in his or her contract of employment or in a collective agreement.