Insufficient performance:
this must be taken into account in the job reference

The assessment of an employee's performance and behaviour is the essence of every testimonial.

As soon as an employee's performance is unsatisfactory, the writing of the testimonial becomes challenging. It is not forbidden to make negative remarks about performance or behaviour in the report if these are relevant. Gross misconduct, completely inadequate performance or massive abuse of trust can and must be mentioned truthfully.

One-off performance declines, normal lack of due diligence or rare incidents may not be mentioned, as these are not relevant in the overall assessment of performance and would impede the employee's professional advancement.

Bonus or gratification - which applies when?

Complaints about bonuses and gratuities regularly arise in federal courts. In its latest decision, the court once again made precise comments on this issue.

The court basically distinguishes between three different meanings of the bonus:
1. bonus to which the employee is entitled
2. variable salary
3. gratuity to which the employee is not entitled.

The Federal Supreme Court stated that a reclassification of the bonus into wages is possible. However, this is only possible if the bonus has a principal character compared to the fixed basic salary. This only applies to low, medium or higher incomes, but not to very high incomes. In order for the bonus to have the character of special remuneration, it must remain secondary to the salary and may only be of secondary importance within the framework of the remuneration. The employer should thus be prevented from paying the employee's actual remuneration in the form of a (voluntary) gratuity.

The following applies:

- The bonus as a gratuity is only treated as a wage component if the bonus is no longer of secondary importance compared to the fixed basic salary.

- If a voluntary bonus is paid without reservation for three consecutive years, this special remuneration is reinterpreted as a bonus to which an entitlement exists.

(Source: BGE 4A_230/ 2019 of 20.09.2019)

Child sick: who may be absent from work for how long?

Again and again there are discussions about parents who are absent from work because of sick children. The general rule is that employees with family obligations are given up to three days off for the care of sick children.

Parents must present a medical certificate, from the first day if the employer so wishes. This also applies if the employment contract itself stipulates a longer period for the employee. The entitlement of three days applies per case of illness and is only available to one parent. Both parents cannot stay at home with their sick child at the same time.

In individual, exceptional cases, a longer absence of the employee may be necessary, especially in the case of serious illness. Proof of this must be provided in the form of medical certificates. The continued payment of wages is based on the legal minimum.

Important for the employer: He must pay the salary for the limited period of time in accordance with the law even if daily sickness benefit insurance has been agreed. This is because the daily sickness benefit insurance will probably not cover loss of working hours due to the care of sick children.

Termination without notice possible after 15 years

The Federal Supreme Court confirmed the dismissal of an employee without notice after 15 years of service as justified. The employee ignited a cigarette in the non-smoking area, made fun of his superior in a video and did not record working hours correctly. The Federal Supreme Court considered these three wrongdoings as sufficiently severe to give notice of termination without notice, even after almost 15 years with the company. (Source: BGE8C_800/2016 from 12.12.2017)

Part-time employees and accident insurance: What applies?

If an employee becomes unfit for work due to an accident, the mandatory accident insurance UVG will cover it. It pays for occupational accidents and, as a rule, also for non-occupational accidents.

Part-time employees who work less than eight hours a week for one employer are only insured for occupational accidents and accidents on the way to work. How much the employee has worked depends on his or her actual working hours and not on what was agreed in the employment contract. If the employee works for an employer for less than eight hours, he must include non-occupational accident coverage through his private health insurance. However, this does not pay a daily allowance, but only covers the costs of treatment. A daily allowance would have to be insured additionally. The benefits of the compulsory accident insurance completely replace the employer's obligation to continue to pay wages, provided that the benefits amount to at least 80 percent of the wage. If the payment is lower, the employer must pay the difference up to 80 percent for a limited period of time.

This only applies if the employment relationship has lasted more than three months or was entered into for more than three months.

Is a gratification after 18 years still voluntary?

For 18 years, an employee received a bonus of one month's salary at the end of each year. In the payroll, the company referred to this amount as a "voluntary payment".

In the five years prior to his dismissal, the employee received a lower bonus, which he did not agree with. He sued for a full - monthly salary as a bonus. The Zurich High Court ruled in his favour: the company had paid a bonus in the amount of one month's salary even when business was bad. Due to the long period of time it had therefore become a fixed salary component.

(Source: Zurich High Court, RA180004 of 06.08.2018)

Pregnancy does not need to be disclosed during the probationary period

The employer employed the employee in a first phase from July to September 2015 as a "trainee" without a written employment contract against cash payment. From October 2015, the employee worked on the basis of an open-ended employment contract. This employment contract provided for a probationary period of three months. At the end of October 2015, the employee informed the employer of her pregnancy, which had existed since July 2015. The employer terminated the employment relationship on the same day, giving seven days' notice. The employee then claimed that the termination was null and void due to her pregnancy, offered her work and asserted wage claims.

Both cantonal courts upheld the complaint. The Federal Court dismissed the employer's complaint (judgment 4A_594/2018 of 6 May 2019).

The employer asserted in vain that there had been no employment contract between the parties until the end of September 2015, but only an internship contract ("rapport de stage"). The Federal Court recalled that the designation of the contract by the parties was not the sole criterion for the legal qualification of the contractual relationship. In the present case, the Federal Supreme Court rather found that all essential characteristics of an employment relationship had already existed as of July 2015 and therefore an employment relationship had already existed as of that date. The probationary period had thus expired at the time of the termination and the employee was protected against termination of the employment relationship (all in all E. 4).

Nor did the argumentation that the employee had acted improperly by concealing her pregnancy from the employer until after signing the employment contract for an indefinite period help the employer to succeed. In particular, the Federal Supreme Court considered that, apart from special circumstances, the employee was not obliged to inform the employer of an existing pregnancy prior to the conclusion of an employment contract or during the current probationary period. In the specific case, therefore, the delayed notification of the pregnancy was not an abuse of rights (all in all E. 5).

Admissibility of the obligation to reside in the canton for high-ranking cantonal employees

The Security Directorate Uri was looking for a chief for the traffic and riot police by means of a job advertisement. The requirements included taking up residence in the canton of Uri. When A., who was subsequently hired, moved his residence to Lucerne in order to move in with his girlfriend for the first time, the Security Directorate of Uri ordered A. to take up residence in the canton of Uri by order.

A filed a complaint against this, which the cantonal lower instance dismissed. The Federal Supreme Court did not appeal in public matters and rejected the subsidiary constitutional complaint (judgment 8C_733/2018 of 13 June 2019).

In particular, the Federal Supreme Court had to deal with the possible violation of three fundamental rights. However, it did not consider any of them to have been violated. Since the obligation to reside was recorded both in the job advertisement and A. later confirmed his willingness to reside in the Canton of Uri during the interview, the Federal Supreme Court ruled that the order was not contrary to good faith. Nor does anything change the fact that the obligation to take up residence was not explicitly provided for in the public employment contract (E. 3).

Furthermore, a violation of the freedom of establishment pursuant to Art. 24 para. 1 BV was asserted. The disputed issues were, on the one hand, the existence of a sufficient public interest and, on the other, the question of reasonableness. The Federal Supreme Court considered that there was a public interest in the obligation to reside, since A. as a high-ranking police officer with a management function, carries out sovereign acts with great independence (E. 4.3.3). The practice of the Federal Supreme Court was based on the idea that "state power is exercised by the subjects of the state themselves" (E.4.3.2). In addition, the court considered the order to be reasonable for A.. A. for the first time moved into a shared apartment with his girlfriend; a stable cohabitation was therefore not given. In addition, a joint move to Uri would extend the girlfriend's journey to work, but it would still be within an acceptable framework (E. 4.4.3). The restriction of the fundamental right thus proves to be justified in the sense of Art. 36 BV (E. 4.5).

Finally, the order obviously does not violate the equality of rights pursuant to Art. 8 para. 1 BV, "if a residence obligation is imposed only on those employees for whom there is an important public interest in close ties with the canton. Nor is it an inequality of law if public prosecutors of the canton of Uri are not obliged to reside. On the one hand, the public prosecutors would be perceived less in public; on the other hand, such an obligation would lead to recruitment problems. The Federal Supreme Court did not consider this consideration of the lower instance to be arbitrary.

When does overtime also have to be paid out to management employees?

After his dismissal, a project manager demanded more than CHF 160,000 for overtime, bonuses and holidays. The Federal Court awarded him around CHF 57,000. The decisive factor was that overtime was not compensated in accordance with the employment contract. However, according to the Labour Act, overtime of more than 60 hours per year must be compensated. Overtime occurs when the maximum working hours laid down in the Labour Act are exceeded. (Source: BGE 4A_207/ 2017 of 07.12.2017)

Performance-related bonus is not a fixed salary component

Labour disputes often involve whether a bonus is a wage component or a voluntary bonus. In the current case, a manager went to the Federal Supreme Court and claimed a bonus of CHF 40,000. His employment contract stated: "Any bonus depends on the employee's performance and is not part of the salary". Because he had received a bonus every year, he assumed that he would continue to be entitled to it. In court, however, he was unsuccessful in all instances because he could not prove that he had received the bonus on the basis of the business result and thus independently of the evaluation of his work. (Source: BGE 4A_574/2017 of 14.05.2018)

'Garden leave' is not revocable

An investment advisor terminated the agreement by giving six months' notice. His supervisor sent him home in February 2019 and took his badge, mobile phone and laptop. His business e-mails were forwarded to his supervisor and he informed the other employees that they now had to look after his clients. After one month, the supervisor asked the investment advisor to return to work by the end of the notice period. He refused and filed a complaint with the Zurich Labor Court. He was proved right because he could assume an irrevocable release. (Source: Labour Court Zurich, AH 14190 of 14.06.2016)

Are employees allowed to talk about their salaries?

Provisions in employment contracts that the employee must keep his wage secret are not valid. According to the Swiss Code of Obligations, the employer must protect the employee's personal rights and therefore nothing can be formulated in the employment contract that puts the employee at a disadvantage. Therefore, a ban on talking to colleagues about one's own salary is null and void. This is reinforced by the Federal Act on Equality between Men and Women.

Are employees taken over when a company is acquired?

In a bar in Geneva there was an employee who was pregnant. The bar was sold and the new employer did not want to take her over, although she offered her work. Both the Geneva Labour Court and the Federal Court ruled in favour of the woman: according to the law, the buyer of a company automatically takes over all employees. Therefore, the limited liability company must continue to pay the employees' wages. (Source: BGE 4A_350/2018 of 25.10.2018)

Costs for Home Office to be borne by the employer

An employer and an employee met before the Federal Supreme Court. The employee filed a claim for compensation for using a room in his private home as a study. The Federal Supreme Court ruled in favour of the employee, although the employment contract did not include any compensation obligation for home office use. The Federal Court based its decision on the fact that if the employer does not have a suitable job available for its employees, it must bear the costs of the infrastructure required. In this case, the employee did not have a suitable workplace available. According to the Swiss Code of Obligations, the employer must reimburse the employee for all expenses necessarily incurred in carrying out the work. It also does not matter that the employee has rented the room anyway - the company has to pay for the expenses. (Source: BGE 4A_533/2018 of 23.04.2019)

Contractual penalties in the employment contract must be formulated precisely

The federal court had to decide whether to approve the lawsuit against a doctor. Among other things, the doctor was accused of violating the ban on competition. The Federal Supreme Court ruled in favour of the doctor on the grounds that her employment contract with a non-competition clause did not contain enough precise provisions. The offences to be punished must be clearly described in the employment contract and the amount of the penalty must be determined and proportionate. A provision according to which any breach of the employment contract, irrespective of the nature and seriousness of the breach, is to be sanctioned with a contractual penalty clearly does not satisfy the requirement of certainty. (Source: BGE 4A_579/ 2017; 4A_581/ 2017)

Changes to working hours require the employee's consent

Even if the employment contract does not state anything about working time, an employer may not change working times immediately. In particular, if the employment relationship has already lasted for several years, the working time is considered a component of the contract. If the employer wants to change the working hours immediately, he needs the employee's consent. Unilateral changes are not permitted. If the employee does not agree, the previous contract must be terminated and a new contract concluded. Such dismissals are not abusive if the employer wishes to adapt the employment contract to changed economic or operational needs.

Additional claims for euro wage payments are abusive

Two employees of Swiss companies filed a complaint for back pay before the Federal Court. In 2011, they agreed to a contract amendment to their wage payment in euros, in the knowledge that a wage paid in Swiss francs would have resulted in a higher euro amount. The applicants claimed payment of the difference on the ground that discrimination against nationals of one Contracting Party residing in the territory of another was prohibited. Both lower courts awarded compensation to workers. The Federal Supreme Court, on the other hand, ruled in favour of the companies and dismissed the complaint. The court stated that the employees knew at that time what they were prepared to accept and that they knew the special circumstances such as serious economic circumstances. They considered the additional claims to be an abuse of rights. (Source: BGE 4A_215/2017 of 15.01.2019)

How to deal with voluntary additional working hours by employees?

With flexible working times, it can happen that employees work longer hours on their own, for example, to finish a job. These additional working hours are not company-defined and are not overtime. The company has the option of having these hours compensated by the employee. Or an upper limit is set up to which employees can accumulate overtime on their own responsibility. The hours that exceed this limit are deleted without compensation, unless overtime is ordered or granted. Voluntary overtime becomes problematic if the direct manager subsequently approves these additional hours as company overtime. Overtime once approved and granted can no longer be negated and must be compensated.

An employer dismissed a member of management for repeated disregard of internal communication guidelines. He did not follow the official channels and the tonality of his remarks was inappropriate. The employee went to court and claimed that the dismissal was abusive because he only disagreed with the employer. However, several e-mails proved that his method of communication did not comply with the rules of the internal policies known to him in his capacity as an employer. This misconduct was sufficient reason to significantly undermine the relationship of trust under labor law, which is why the dismissal was legal. (Source: BGE 8C_541/2015 of 19.01.2016)

Work on call; fluctuating degree of employment

The complainant worked as a painter for the respondent. An hourly wage of CHF 26 was agreed. The painter worked on call with a fluctuating level of employment. In the months of January and February 2014 and from April to August 2014, he received no salary (judgment 4A_534/2017 of 23 October 2018).

In particular, the Federal Supreme Court asked whether this form of work on call (travail sur appel) was legally permissible. The highest court denied this question (E. 4.3).

The system agreed between the contracting parties allowed the employer unilaterally to determine the duration of the working time and the remuneration of the employee depending on his own economic needs. The Federal Supreme Court saw this as a frowned upon transfer of the entrepreneurial risk to the employee. The law provides that the employer remains obliged to pay wages even if there is not enough work (Art. 324 para. 1 OR in conjunction with Art. 362 and 341 para. 1 OR). According to the Federal Supreme Court, it follows from this that the employee employed on call may rely on a certain degree of employment during the entire duration of the employment relationship (all in all E. 4.3). The employer therefore had to make substantial back payments in the specific case (E. 4.4 and 5).

New Federal Court decision on video surveillance at the workplace

The Federal Court had to decide whether video recordings ordered by the police on the premises of a company could be used as evidence. The managing director had filed criminal charges against unknown persons on suspicion of theft. The Solothurn cantonal police then installed cameras in the company, which monitored an office with a kitchen, where a safe was located, for around five weeks. Customer areas were not monitored. The recordings were made with the consent of the managing directors, but without the knowledge of the recorded employees.

The question in dispute was whether surveillance ordered by the police would interfere with fundamental rights. Such an intervention would have to be approved by the public prosecutor's office, which was not the case here. Subsequently, the court ruled that video surveillance was not usable because it was only ordered by the police and no approval was obtained from the public prosecutor's office. In three cases, the surveillance was permitted without the knowledge of the employees, on the following grounds

- if the video surveillance does not cover the behaviour of the employee, but only the place at which the employees are sporadically and briefly present is filmed

- the video surveillance of the cash room is intended to prevent criminal acts by third parties, which is why a business owner has a considerable interest in surveillance. Under these circumstances, the personal rights of employees are not violated unlawfully according to the Federal Supreme Court.

- video surveillance does not affect the health of workers.

(Source: BGE 6B_181/2018 of 20.12.2018)

Data protection for employees leaving the company

If an employee leaves the company, the employer has the obligation to delete all data of the former employee immediately. This does not apply to documents for social insurance and wage declarations that are required for the preparation of certificates and reference information or that are necessary for the enforcement of a post-contractual non-competition clause or other rights. These documents are subject to a deletion period of 10 years after the employee leaves the company. The employer may also retain data if legal proceedings are pending or threatened. This is particularly important in the case of the 180-day period for the judicial assertion of an abusive dismissal, starting from the end of the employment relationship. The employee must also delete his private data such as private routes in the navigation system, private mails, private data on the company server, etc. The employee must also delete his private data such as the private route in the navigation system, private mails, private data on the company server, etc. The employee must also delete his private data such as the private route in the navigation system, private mails, private data on the company server, etc. The employee must also delete his private data such as the private route in the navigation system, private mails, private data on the company server, etc.
Oct 29, 2019

Salary on call and not enough work: what is the legal situation?

The Federal Supreme Court ruled in a case in which a painter sued his employer for payment of a wage. He worked for a sole trader on an irregular basis and on an hourly basis. For seven months he received no wage. The court classified the employment relationship as "part-time with work on call". The employer called the painter's performance off unilaterally according to his needs and determined his working hours and remuneration. The Federal Court saw this as a transfer of the entrepreneurial risk to the employee. The law provides that the employer remains obliged to pay wages, even if not enough work is available. According to the Federal Supreme Court, it follows from this that the employee employed on call may rely on a certain degree of employment during the entire duration of the employment relationship. No conclusions could be drawn from the parties' agreement as to the concrete volume of work to be expected. Therefore, the Federal Court determined an average workload of 25 percent on the basis of hourly reports of previous months and sentenced the employer to back pay.

(Source: BGE 4A_534/2017 of 23.10.2018)

Salary entitlement in the event of illness when employed on an hourly basis?

Anyone who is unable to work due to an illness and has been employed for more than three months is entitled to a salary. The salary must continue to be paid for at least three weeks a year. How long exactly depends on the number of years of service and the place of work. In the case of irregular wages, the average wage in the last year before the illness is used as a basis.