Contested work regulations

Contested work regulations

"I've been working for a cleaning company for nearly 5 years, and today my employer decided to amend the work regulations, which include the terms and conditions of working hours. All employees are obliged to sign the new regulations, failing which the employer has already indicated that it will not continue the employment relationship. I am opposed to the amendment of these regulations. Is this legally possible?

Magaline, Bernex

Many readers are often surprised to learn that Swiss law leaves each party to an employment contract free to terminate it within the statutory or contractual notice period. However, it is not possible to terminate an employment relationship for just any reason. The legislator has drawn up a non-exhaustive list of prohibited reasons that render termination contrary to the rules of good faith, i.e. abusive. However, even if the notice is unfair, it remains valid. The party who terminates the employment relationship in breach of the rules of good faith must nevertheless pay compensation to the other party of up to the equivalent of six months' salary. This amount will be set by the judge on the basis of the circumstances of the particular case, in particular the economic situation of the parties or the reintegration difficulties encountered by the dismissed employee.

Among the forms of dismissal considered to be abusive is "modification leave", which refers to termination following an employee's refusal to accept a change in his working conditions. According to case law, however, this practice is only prohibited when the employer proposes changes that must take effect immediately or at least before the expiry of the notice period. As employment contracts are not immutable, the employer is simply obliged to provide the same services until the expiry of the notice period, but not beyond. It should be noted that the Swiss Federal Supreme Court, which found that a minor change to the terms of reference was not sufficient, did not consider the dismissal of a kiosk employee who refused to sell erotic magazines and postcards to be unfair, since in this case there was no change to her terms of reference.

Therefore, if your employer gives you the choice of either accepting a deterioration in your working conditions before the expiry of your notice period, or leaving the company, it is quite possible that the Labour Court will consider any notice of termination to be unfair if you object to the change. As indicated, the fact that the notice may be unfair will not affect its validity, but you may be entitled to compensation.