Although there is no general concept of “dismissal protection” and a specific need for grounds, a termination might be considered unlawful under certain conditions:
a) However, in most of these cases the termination is not void. The employment terminates at the end of the termination period, if any; the employee is only entitled to compensation, but not to re-employment.
Examples are terminations
- on account of an attribute pertaining to the person of the employee (age, religion, race, etc.)
- because employee exercises a constitutional right
- solely in order to prevent claims under the employment relationship from accruing to the employee
- because the employee asserts claims under the employment relationship in good faith
- because the employee performs Swiss compulsory military or civil defence service or Swiss alternative civilian service or a non-voluntary legal obligation
- because the employee is or is not a member of an employees’ organisation or because the employee carries out trade union activities in a lawful manner
- while the employee is an elected employee representative on the staff council for the business or on a body linked to the business, and the employer cannot cite just cause to terminate his employment;
- in the context of mass redundancies, without having consulted the organisation that represents the employees or, where there is none, the employees themselves.
In any event, it is recommendable to have a written history of issues addressed to the employee before termination is expressed, in particular if termination is not given for economic reasons.
b) In addition, there is a temporal protection against termination given under the following circumstances, so termination is void and the employment relationship continues:
- whilst performing military or civil defence service or Swiss alternative civilian service
- illness or accident
- pregnancy and childbirth
- participation in an overseas aid project ordered by the competent federal authority.
The employer must give further notice after the end of the protection period if he wants to terminate the employment relationship. If the termination is made before the start of a protection period, but the notice period has not yet expired by then, the expiration of the notice period is interrupted and only continues after the end of the protection period. However, the termination as such is effective.