How do you break a fixed-term contract?

How do you break a fixed-term contract?

"I have been on a fixed-term contract for 3 months, until 15 November 2017. I have found a permanent position elsewhere but my employer does not want to terminate my current contract. Is there a termination clause allowing a fixed-term contract to be ended early when a permanent contract is found?"

André, Geneva

A fixed-term contract (the "CDD" of our French neighbours) is concluded for a fixed period, as its name suggests. This means that the employer undertakes to pay a salary to the worker for the period agreed by the parties, in exchange for his or her work. It follows that it is not normally possible to break such a contract before its term.

This type of contract terminates on expiry of the agreed term, without the need to give notice, in accordance with art. 334 of the Swiss Code of Obligations. However, the parties may specifically agree on a trial period during which the contract may be terminated in the ordinary way, with the 7-day notice period applicable to open-ended contracts. By analogy with art. 335b of the Swiss Code of Obligations, this trial period may not exceed three months. You should therefore check whether your contract contains such a clause. It should also be noted that if the employment relationship continues beyond the stipulated period, the contract becomes open-ended.

Apart from these cases, the only way to terminate a fixed-term contract prematurely is to terminate it immediately for just cause, if the party giving notice can no longer be expected to continue the employment relationship. In order to be able to invoke such a measure, a serious breach must have destroyed the bond of trust essential to the continuation of the employment relationship. According to the Federal Court, this is particularly the case when the employee is the victim of sexual harassment or mobbing on the part of his employer. The same applies, for example, to a refusal to pay wages that are due and payable.

On the other hand, without grounds for immediate termination, leaving your post before the agreed term would constitute unjustified abandonment of the job. In such a case, you would be liable to pay your employer compensation equal to a quarter of your monthly salary, and you would be responsible for any damages that he could prove, in particular the costs incurred by your replacement.

It follows that negotiation with your current and/or future employer seems the most appropriate way of resolving your problem.