Redundancy and bonuses
Redundancy and bonuses
At the end of November 2018, I resigned from the firm I had worked for since September 2013. During those years, even though nothing had been stipulated in writing but only verbally, a bonus corresponding to my monthly salary had always been paid to me in December. This has not been the case this year. What are my rights, given that the name of the company has recently changed following restructuring?
F. Vaud
The law stipulates that if the employer grants special remuneration in addition to wages on certain occasions, such as Christmas or the end of the financial year, the employee is entitled to it when it has been agreed.
In order to distinguish whether an end-of-year bonus is a goodwill gesture or part of the salary owed by the employer, the Federal Court has established several criteria for distinguishing between these two types of situation: where a bonus has been paid regularly without any reservation as to its voluntary nature for at least three consecutive years, it is accepted that, by virtue of the principle of trust, this remuneration is deemed to have been tacitly agreed between the parties, whether the amount is always the same or variable. It is therefore an element of the salary to which the employee is entitled. It is not even necessary for this bonus to be mentioned in a written contract; an oral agreement on the subject is sufficient.
In cases where reservations have been made at the time of each payment, but the bonus has been paid for several decades without the employer making use of this reservation even though he would have had grounds to invoke it, the case law also considers that the bonus is now due.
If the employment relationship is terminated before the occasion giving rise to the special remuneration, the employee is entitled to a proportionate share of the agreed or deemed bonus, in the same way as holiday pay.
It should be noted that if the employer transfers the business to a third party, the employment relationship passes to the acquirer with all the rights and obligations arising therefrom, unless the employee objects. A change in the name or business name of your practice as a result of restructuring therefore has no influence as such on the conditions applicable to your employment contract.
A Happy New Year to all Tribune readers, and every success to those who returned to work this morning or a few days ago!
