Fixed-term contracts: what security is there?
Fixed-term contracts: what security is there?
I currently have a fixed-term employment contract with a company that is about to be sold. The project I'm assigned to will probably be stopped once the takeover is complete. This is my second fixed-term contract with the same company. How can I defend my job?
Sandra, Geneva
There are two different situations, depending on the form taken by the transaction you mention. Firstly, if your employer is a legal entity, such as a limited company, the purchase of its capital by a third party will have no influence on the employment contracts entered into by that company. Secondly, it may involve a transfer of the business to a new responsible person who will essentially retain its identity, i.e. its corporate purpose, organisation and individual character.
In this second case, article 333 of the Swiss Code of Obligations (CO) provides that if the employer transfers the business or part of it to a third party, the employment relationship passes to the purchaser, with all the rights and obligations arising therefrom, on the day of the transfer, unless the employee objects. The employment relationship is therefore automatically transferred to the purchaser, even against the wishes of the new or former employer, who may not enter into a deviating agreement on this point.
When the company is taken over, your new employer will be required to comply with the legal obligations associated with your fixed-term employment contract. Your new employer should therefore not terminate your contract before the agreed deadline, unless there is just cause for immediate termination. In fact, an employer who terminates the contractual relationship before expiry without just cause may be ordered to pay all salaries relating to the remainder of the agreed term, plus compensation of up to six months' salary.
Finally, it should be noted that in the event of tacit renewal of the employment contract after the expiry of the agreed fixed term, it will be presumed to become a contract of indefinite duration, with the employee continuing to benefit from the acquired rights based on seniority. As this rule is dispositive in nature, the parties may, however, set successive renewal deadlines. It is therefore possible to enter into several fixed-term contracts in a row, provided this is not done in order to evade the law.
