In Switzerland, immediate termination of an employment contract is possible under certain specific situations. The Swiss Code of Obligations (CO) stipulates that an employment contract can be terminated immediately for valid reasons.
Valid reasons are serious grounds that prevent the continuation of the employment relationship. These reasons can be related to the behavior of the employee, such as acts of violence, theft, or unjustified absences, or to the behavior of the employer, such as delayed salary payments or acts of harassment.
Immediate termination for valid reasons should be used only in a limited manner, as it is considered an exceptional measure. It may be justified by a particularly serious breach on the part of the employee, which involves the violation of a contractual obligation. However, other incidents may also be considered as justifying such a measure.
The breach in question must be serious enough to objectively destroy the essential trust relationship in the employment contract, or at least affect it so deeply that the continuation of the employment relationship cannot be reasonably demanded.
It is conceivable to proceed with immediate dismissal for a less serious but repeatedly occurring reason, such as frequent lateness, failure to respect work schedules, unjustified absence, late communication of an inability to work or a medical certificate, or failure to follow instructions. However, in this case, the breach can justify immediate termination only if it has been repeated despite one or more warnings, ideally given in writing.
The judge has discretion to determine whether valid reasons for termination exist, whether on the part of the employer or the employee. In the case of termination for valid reasons, it must take place quickly after the occurrence of the valid reasons, generally within a very short period of two or three days, not counting weekends and public holidays, or even a week in some cases where the decision must be made by a body composed of several people within a company. It is important to note that both the employer and the employee have the option to terminate the employment contract at any time, in case of valid reasons.
Immediate resignation (= immediate notice given by the employee)
Immediate resignation by the employee can be justified in certain specific situations, such as when the employer cannot guarantee solvency to pay future salaries in accordance with art. 337a CO, or when the employee suffers acts of violence from the employer such as assault, insults, sexual harassment, theft, etc. In such cases, the employee may decide to leave their job without notice and without waiting for the end of the employment contract.
In cases of moral harassment (mobbing) suffered by the employee, whether from the employer, colleagues, superiors, clients, or other third parties in a professional context, the situation is slightly different. It is recommended that the employee formally (for example, by registered letter) address their employer, reminding them of their obligations regarding respect and protection of personality, as provided for in art. 328 CO, before making the decision to resign immediately.
Immediate dismissal (= immediate termination by the employer)
First, it is important to note that the employer has the right to dismiss the employee immediately, even if the latter is protected against ordinary dismissal pronounced at an inopportune time, particularly in case of illness. The judge takes into account the circumstances specific to each case, such as the position and responsibility of the employee, the nature and duration of the employment relationship, as well as the severity and importance of the breaches alleged.
However, it should be emphasized that an inability to work through no fault of the employee cannot be considered a valid reason for immediate dismissal. Similarly, decreased productivity or failure to meet set goals should not be considered a valid reason for immediate termination.
If an employee is immediately dismissed for reasons they consider unjustified, they can challenge this decision and approach the court. To do this, they must first express their written opposition to the termination to the employer as quickly as possible and give them a deadline to reconsider their decision.
If the employer does not reconsider their decision upon the expiry of the given deadline, the employee can then approach the court. If possible, they should continue to offer their services or, failing that, propose them in their written challenge.
In summary, immediate termination of an employment contract in Switzerland is possible for serious and valid reasons and can be implemented by either the employer or the employee. If the employee believes that the termination is unjustified, they can challenge the decision and approach the competent court.