I'm on sick leave and have signed my termination...
I'm on sick leave and have signed my termination...
During my sick leave, I agreed to sign a termination agreement with my employer. I then heard that I could not be dismissed during the protection period, but I was not informed of this. Is the agreement valid?
Hugo, Geneva
First of all, article 336c of the Swiss Code of Obligations (CO) stipulates that, after the trial period, the employer may not terminate the contract for a certain period following the employee's incapacity to work - in whole or in part - as a result of illness or accident, during pregnancy and the sixteen weeks following childbirth, or when the employee is performing compulsory service (military or civilian). Notice given during such a period of protection is null and void and has no effect.
The freedom of contract guaranteed by Article 19 of the Swiss Code of Obligations nevertheless allows for derogations from the law, provided that the parties so agree. However, certain provisions are said to be mandatory and must be applied regardless. The employee may not waive a claim arising from a mandatory provision of the law. In this case, article 336c of the Swiss Code of Obligations is a so-called semi-imperative provision, in the sense that it is possible to terminate the employment contract by mutual agreement during a protection period, provided that the parties do not thereby seek to circumvent a mandatory provision of the law. For such an agreement to be valid, the employer must not realise that he is exploiting an error or ignorance on the part of the employee.
There is no general obligation on employers to make employees aware of their rights, particularly in terms of protection against dismissal, and even less so where the employer does not realise that the employee may be mistaken. For example, the Federal Court has upheld the validity of a contract of termination entered into by a pregnant woman who subsequently claimed to be unaware of the existence of maternity leave. On the other hand, it is not possible, for example, to agree in advance that the employer will have the right to terminate the contract if the employee becomes pregnant.
In short, freedom of contract does allow parties to terminate an employment contract by agreement during a protection period, provided they act in good faith.
