Redundancy

Redundancy

"I was made redundant from the company I had worked for for 18 months, supposedly due to a reorganisation of the sales teams in Switzerland and financial problems. However, I found out that the company had rehired another person for the same job that I had been doing less than 6 months after I left, so I suppose that the restructuring and the financial aspect were just an excuse for giving me the sack! Could this be considered unfair dismissal?

David, Geneva

Under art. 335 of the Swiss Code of Obligations (CO), an employment contract of indefinite duration may in principle be terminated by either party. Under Swiss law, the employer is free to terminate the employment contract without giving any specific reason. However, the party giving notice must give reasons for its decision in writing if the other party so requests.

Since no relevant reason is required for dismissal to be valid, employers sometimes invoke an economic justification in support of dismissal. However, certain grounds may render termination unfair: under art. 336 of the Swiss Code of Obligations, termination is unfair if it is given by one party for a reason inherent in the personality of the other party or because the other party is asserting legitimate claims arising from the employment contract.

Consequently, the dismissal is not unfair simply because the reason given by the employer is incorrect. Even if you suspect that the reason for your dismissal is not the one communicated to you, and even if you are right, this does not mean that a Tribunal would classify it as unlawful, unless you are able to demonstrate that the real reasons for your dismissal are unfair. This would be the case, for example, if your employer dismissed you because you were rightly demanding to be paid your salary or to take your holidays, because you belonged to a trade union, or because of your race, religion or sexual orientation.

In such cases, under Articles 336a and 336b of the Swiss Code of Obligations, the party that wrongfully terminates the contract may be ordered to pay the other party compensation of up to 6 months' salary or more. The party wishing to claim this compensation must lodge an objection to the termination in writing by the end of the notice period at the latest, and then bring the matter before the court within 180 days of the end of the contract. If you fail to follow this procedure, you will no longer be able to claim any compensation.