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The principle of freedom of termination applies in Switzerland, but this is restricted by a number of provisions on subject matter (Art. 336-336b CO) and on time (Art. 336c-336d CO). The factual protection against dismissal is theoretically intended for the contractual protection of both parties. If both parties are in agreement, a termination agreement is permissible at any time due to the freedom of contract. However, this cannot simply be used to circumvent the protection against dismissal. The protection against (unjustified) dismissal requires a legally effective contract, however. Consequently, it does not apply when an employment relationship is terminated due to a legal defect in the contract. If you have any questions regarding your protection against an (unjustified) dismissal, please contact one of our attorneys for employment law in St. Gallen, Zurich or Frauenfeld.
The factual protection against termination is limited to wrongful terminations in Swiss labor law. Even if a termination is recognized as wrongful, the employment relationship is terminated and must solely be compensated. For the evaluation of a wrongful termination, Art. 336 CO contains a non-exhaustive list of grounds for abuse. Among them is the termination due to personal characteristics, which is also interpreted as a discriminatory termination. Other examples include being fired on account of one’s exercise of constitutional rights or being fired in order to thwart an accrual of claims.
For the temporal protection against termination to apply, the probationary period must have expired, and the employer must have issued an ordinary notice of termination. There must also be a special protected circumstance, for which the law lists four possibilities. These possible circumstances constitute a temporal blocking period, during the employee is protected from dismissal. The first protected circumstance relates to dismissals during military, protective or civilian service, including the four weeks before and after. The second circumstance is that of illness or accident. Protection against dismissal applies to employees who are prevented from working due to illness or accident, therefore. The blocking period is defined by the previous period of employment in this case. Thirdly, the temporal protection against dismissal applies for the duration of pregnancy and the subsequent 16 weeks. The fourth and last circumstance is when an employee participates in a service that has been demanded by the competent federal authority for an aid operation abroad, with the consent of the employer. In contrast to the factual protection against dismissal, a termination during a ‘blocking period’ is invalid. Accordingly, the employment relationship continues and does not automatically end on the next permissible date, and hence, a new notice of termination must be given. Another aspect of temporal protection is that the notice period of termination cannot be interrupted by a blocking period.
If you are unclear about your protection regarding (wrongful) termination or have other problems concerning employment law, our legal employment law specialists in Zurich, St. Gallen or Frauenfeld are happy to help you.