The law governing employment relationships in Swiss law is the Code of Obligations (CO). The CO contains the basic rules applicable to the employment relationship between employers and workers, particularly regarding employment contracts, wages, working hours, holidays, protection against unfair dismissal, etc. Certain sectors may also be subject to special laws.
Swiss labor law aims to protect workers against exploitation, abuse, and discrimination, while allowing businesses to operate efficiently and create jobs. Therefore, labor protection standards are balanced to protect the rights and interests of workers while recognizing the needs of employers and the Swiss economy as a whole.
Job abandonment is a situation where an employee leaves their job without warning or justifying their absence for an extended period. In Swiss labor law, job abandonment is considered a serious breach of the employee’s contractual obligations, which can lead to dismissal for just cause. However, before proceeding with a dismissal for just cause, the employer must ensure that the employee’s prolonged absence indeed constitutes job abandonment.
According to art. 337d CO, if an employee unjustly abandons their job or fails to show up for work, the employer is entitled to claim compensation equal to a quarter of the employee’s gross monthly salary. Additionally, the employer may also demand additional damages if they can prove that they suffered harm due to the employee’s job abandonment or failure to commence work. The judge has the discretion to reduce this compensation if the employer does not suffer any damage or if the damage caused is less than the indemnity provided by law (art. 337d para. 2 CO). It is also important to note that if the right to compensation is not extinguished by a set-off, it must be exercised within 30 days from the date of the abandonment or failure to commence work, either through legal action or enforcement proceedings (art. 337d para. 3 CO). This prevents the right from becoming time-barred.
If a worker abandons their job, this immediately terminates the employment contract, and the employer does not need to proceed with immediate dismissal. However, the employer must ensure that the worker acted consciously, deliberately, and definitively to terminate the employment contract.
The employee may express their intention to abandon their job either explicitly or tacitly, through conclusive acts (for example, unjustified absence from work for several months). In the case of an express declaration – although rare – the employer does not need to terminate the employment contract. However, it is advisable to confirm in writing that the employee has abandoned their job and that the employment contract has ended. In the case of a tacit declaration, it is appropriate to assess whether the employer could reasonably understand that the employee intended to definitively leave their job.
Absent for health reasons and does not provide a medical certificate
If a worker is absent for health reasons and does not provide a medical certificate, the employer cannot consider that the worker has abandoned their job without first requiring the worker to return to work or provide a medical certificate.
If the employee’s absence is short-term, it cannot be considered job abandonment without a thorough examination of the circumstances. However, the employee’s failure to fulfill contractual obligations can lead to immediate termination for just cause under art. 337 CO, after a warning.
A relevant example is the temporary refusal of the employee to work due to a state of anger. In this case, the employer cannot conclude job abandonment if the refusal is short-term and if they can see that it is only a temporary refusal. Conversely, if the employee’s absence lasts several months, the employer must consider that they have abandoned their job and do not wish to continue the employment relationship.
On the other hand, when the employee’s absence is long-term (several months), the employer may consider that the employee has abandoned their job and that it is therefore justified to proceed with a dismissal for just cause.
In summary, job abandonment is a situation that must be treated with caution by employers and employees and can have serious consequences on employment relationships.