Dismissal and protection periods: what the law says
Certain absences can render a dismissal null and void, or suspend the notice period. For employers, it is essential to be familiar with the periods of protection provided by the Swiss Code of Obligations (CO). Our partner CJE, Avocats, Conseillers d’Entreprises, reviews the situations protected by the CO and their impact on dismissal and the notice period.
Art. 336c of the Swiss Code of Obligations (CO), reproduced below, deals with termination at an inopportune time when notice is given by the employer. Its purpose is to protect the employee in terms of the timing of the termination, so as to allow him/her to benefit from a full notice period, in order to be able to look for a new job. This provision has a dual effect:
- Termination is null and void if given during a protection period.
- The notice period is suspended if a protection period occurs during the notice period.
Art. 336c of the Swiss Code of Obligations: termination by the employer at the wrong time
1 After the trial period, the employer may not terminate the contract:
a. while the employee is performing compulsory military, civil protection or civilian service under federal law, or during the four weeks preceding and following such service, provided it lasts more than eleven days;
b. during total or partial incapacity for work resulting from illness or accident through no fault of the employee, for 30 days during the first year of service, for 90 days from the second to the fifth year of service and for 180 days from the sixth year of service;
c. during pregnancy and in the sixteen weeks following childbirth;
cbis. before the end of the extended maternity leave in accordance with Art. 329f, para. 2;
cter. between the start of the leave provided for in art. 329f, para. 3 (maternity leave – death of the other parent), and the last day of leave taken, but for no more than three months from the end of the protection period provided for in let. c;
cquater. as long as the entitlement to care leave under art. 329i (Leave to care for a child seriously affected by illness or accident) lasts, for a maximum period of six months from the date on which the framework period begins to run;
cquinquies. during the leave provided for in art. 329g bis (in the event of the mother’s death);
d. while the employee is participating, with the employer’s consent, in a foreign aid service ordered by the federal authorities.
2 Notice given during one of the periods referred to in the previous paragraph is null and void; if notice is given before one of these periods and the notice period has not expired before that period, the notice period is suspended and does not continue to run until the end of the period.
3 If the employment relationship is due to end at a certain date, such as the end of a working month or week, and this date does not coincide with the end of the notice period which has started running again, the notice period is extended until the next date.
Note: the above list is exhaustive, but the parties may agree other periods of protection.
In this contribution, we look at cases of protection in the event of illness and accident.
The following three situations need to be examined:
Cumulative illness
Case law accepts that an employee may benefit from several periods of protection in the event of cumulative illness, but only if they are unrelated. This must be a new case, not a continuation of a situation that has already given rise to protection.
A relapse or worsening of the state of health does not entitle the employee to a further suspension of the protection period. (See C. IV below)
Cumulative accidents
Each new accident gives rise to a new period of protection. The continuation of a situation that has already given rise to protection does not give rise to a new right.
Cumulative illness(es) and accident(s)
In the event of illness or accident, each situation triggers its own protection period, which is calculated independently.
Where the incapacity is interrupted, the days of incapacity are added together, provided that all such incapacities are due to the same cause. In the event of a recurrence of the same illness or the after-effects of the same accident leading to a further incapacity to work during the leave period, the employee is entitled to a further suspension of the leave period, but only until the protection period has been exhausted. The employee is credited with a number of days for each case of protection, and the various absences must therefore be added up until the protection period is exhausted.
The employee does not have to be completely unfit for work to benefit from this protection. However, the decisive criterion is inability to work, so it is not enough to be ill or injured.
This protection was introduced not because the employee is unable to look for a job, nor because he or she is unable to work, but because it seems highly unlikely that a new employer would take him or her on at the end of the ordinary leave period, given the uncertainty as to the duration and degree of the incapacity to work.
In the event of partial incapacity, each day during which the employee is incapacitated is counted as a full day in the calculation, so that the protection period is not extended in proportion to the degree of incapacity.
Each protection period runs independently of the other, so they may partially or totally overlap. When two causes of protection overlap during the same period (for example, a first incapacity due to appendicitis surgery, which partially overlaps with an incapacity due to pneumonia), the two periods of protection run in parallel, so that each period is calculated on the basis of the protection relating to it, regardless of the other.
If, at the time of dismissal or afterwards, the employee suffers from an insignificant health problem (such as angina or a temporary, non-chronic headache), which does not affect his/her ability to work and does not jeopardize the prospect of being hired by a new employer at the end of the employment relationship, he/she is not entitled to any protection.
The decisive moment for calculating the duration of protection is the first day of incapacity for work, which is thus included in the calculation.
Days of incapacity are calendar days, not necessarily working days. Coverage is thus granted regardless of whether the incapacity occurs on a working day or a public holiday, even if it is of short duration, provided that the incapacity is not insignificant in its intensity.
Provided there is not a sufficiently close causal or related link between the two conditions, they do not justify an accumulation of periods of protection. The link between the two disabilities must be assessed medically to determine whether the second disability can be considered a continuation of the first.
The employee’s duty of loyalty requires him or her to notify the employer of his or her incapacity as soon as possible, so that the employer is aware of the invalidity of the notice of termination and the need to proceed with a new termination at the end of the protection period, as well as the need to take the necessary measures to protect the employee’s health.
This article was written by our partner CJE, Avocats, Conseillers d’Entreprises.