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| I have a hard time believing that a court would always "merrily" rule in favour of the employee in a situation as described above. Do you have a bunch of court-rulings that you base this comment on? Would be interesting if you could share those with us. I always feel quite insecure in this type of situations and would really appreciate some hard facts for the next time I have an issue like this.
It was my belief that the courts normally rule 50/50, i.e. in a case of instant dismissal with some (allbeit disputable) grounds, the emplyee would end up having to pay half of the contractual notice period e.g. Or if the dispute is the 10 days absence, the employee would end up having to pay 5 days and the employee 5. Are you saying that this belief is totally wrong? | |
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Firstly while courts should be, and usually are, unbiased, in the case of employment disputes they openly favour the employee based on the premise that the employer holds all the aces - which of course they normally do.
With respect to this particular instance the court would find in favour of the employee for the following reasons:
According to law there is no defined period of absence for exceptional circumstances such as death in the family.
Each company is left responsible to set reasonable periods.
In the absence of any defined period the court needs to consider the legal requirement of an employee to act in the interest of the employer with respect to absences and the length of time that can be considered reasonable.
When there is a case of instant dismissal the court additionally needs to consider the gravity of the case and the reasonable expectation that an employee acting in such a way would receive a severe censure.
Given that the company has failed in its duty to set the standard by which the employee should be measured and that the employee through the circumstances might well not be thinking rationally, there can be no reasonable expectation that the employee could expect a severe censure for the actions they took.
Hence there can be no reasonable grounds for instant dismissal - a caution yes and a repeat event would be good grounds as long as action was taken in the first case. If no action was taken in the first case a precedent has been set by which the employee would consider being measured and hence the standpoint of the employer is weakened further.
Now there is one other point to be considered, 10 days is the extreme limit of what can be considered reasonable. So the employee is really walking a fine line between censure and acceptance. However, if you are a judge considering this case then at what point would you say an instant dismissal is justified and under what circumstances. If we start with everyone agrees 1 day is reasonable, but hold on most companies have 2 and certain companies have 3 and possibly other companies give 4 days. At what point is the line crossed that justifies dismissal if this has not been defined for you?
With respect to court rulings, Switzerland uses the principle of jurisprudence constante and not stare decisis. As such while hoping to remain consistent with previous decisions, each case is viewed independently on its merits and thus any prior court rulings would need to have the exact same situation to have much relevance and although I have not looked, it is rather unlikely that I would find one. An example is the earlier quoted time for seeking employment of half a day per week. This is based on jurisprudence constante for a commonly found situation, but you risk at your peril believing this is a limit or a right (employer/employee) and that anything above this is a reason for dismissal.