Termination of employment: protected?
Termination of employment: protected?
"On 1 February 2017, I took on a kitchen assistant. Since 5 May 2017, he has been off work following an accident (which occurred outside his working hours). When will I be entitled to terminate his contract?"
Simone, Geneva
The Code of Obligations (CO) generally provides for periods of protection against dismissal, except in certain specific situations (e.g. during the probationary period, during the notice period for dismissal given by the employee or in the case of fixed-term contracts). Article 336c of the Swiss Code of Obligations prevents employers from terminating the contract of an employee who is totally or partially incapacitated, as in the case of your cook. The fact that he has become unable to work outside his working hours makes no difference, as long as he is not at fault.
The duration of this protection depends on the employee's length of service; during the first year of employment, it is 30 days, then 90 days from the second to the fifth year and 180 days from the sixth year of service. Your employee hired in 2017 has been unable to work since 5 May, so his protection period expired on 4 June. However, as this fell on a Sunday, Article 78 of the Swiss Code of Obligations requires the deadline to be extended to the next working day, i.e. 5 June. As a result, your employee is no longer protected against dismissal due to his absence because of an accident.
Unless otherwise provided by contract, the ordinary notice period prescribed by article 335c of the Swiss Code of Obligations is one month during the first year of employment, two months between the second and ninth year and three months after 10 years with the same employer. The notice period must always end at the end of a month. Please note that the starting point for calculating this period is receipt of the notice of termination. No particular form is required for this declaration, although it is strongly recommended that it be made in writing or in the presence of witnesses for obvious reasons of proof of the facts in the event of a dispute.
In conclusion, if you wish, you may terminate your employment contract with your employee by 31 October, provided that the employee receives notice of termination before 30 September.
Hello, I was notified of my dismissal on 16/01/2025, effective 28/02/2025. I was on sick leave due to a work-related accident from 02/04/2024 to 15/11/2024, covered by SUVA, and from 16/11/2024 onwards. I was entitled to daily allowances until 28 February 2025. I sent a registered letter to my employer stating that they had no right to dismiss me while I was on sick leave and receiving insurance benefits, and that dismissal was inappropriate according to the Romandy collective labour agreement. They refused and are maintaining the dismissal. What should I do?
Thank you for your message and for your interest in our columns.
The situation you describe does indeed raise sensitive legal issues, particularly in relation to protection against dismissal in the event of accident or illness. However, a thorough analysis of your personal situation (contract, applicable collective bargaining agreement, medical certificates, correspondence, etc.) is essential in order to provide you with a precise legal answer.
In general, it is important to clearly and unambiguously notify your employer that you consider the dismissal to be invalid and that you intend to resume your work as soon as your health permits; this may already be apparent from your registered letter. Depending on the specific circumstances, you may also consider referring the matter to the industrial tribunal in order to assert your rights.
The Espace Legal team is, of course, available to review your case confidentially and assist you with the necessary steps. You can book an online appointment with one of our solicitors, who will be able to provide you with personalised advice.
Yours sincerely,
The Espace Legal team