Does anyone know what the rule is (Zürich based employment) for compassionate leave? I have a potentially sticky issue to address with one of my staff and tried to look up the rule in the O.R. manual.

I know that in the UK I have a vague recollection that varying lengths of time off are allowed for the death of a family member (more time for immediate family, less for not so immediate) but nothing popped up in the O.R. "bible" as far as I could see.

Could it be that it is descretionary?

Good question - no correct answer.

All that the law forsees is that in the event of marriage, death (of close relatives), moving, doctor/dentist visits time must be allowed. Exactly how much is not defined and this is "usually" defined in the company regulations or employees handbook. As a "norm" there are 2 days given for deaths of mother/father/child and one for brother/Sister/grandparent/uncle/aunt but there are no fixed amounts.

To consider is the following. If you say 1 day for the death of a child you are likely to cause a stir. If you sack someone for not turning up following the death of a close relative you are on very dodgy ground if the period of absence was less than two weeks - ie the courts are likely to overturn the decision.

So really unless you can provide more detail the answer is you must give time but exactly how much is not stated.

Hi Richard

Thanks for the response. Obviously I don't want to go into too much detail but after the death of a grandparent, the employee took 10 days off. I haven't addressed the issue yet because I was in unknown territory and I didn't want to cause a storm at this sensitive time.

My feeling was to agree on a compromise and ask the person to take half the time (i.e. 5 of the 10 days) as annual leave. Reading what you have written, I think this is pretty generous seeing as the common way seems to allow only one day for the loss of a grandparent.

I could have sort of understood the 10 days if the employee had to travel home to somewhere distant but the employee is a Swiss and the grandparent was living within 50 km.

The bit that irked me was that the employee was totally uncontactable for the 10 days and, given the sudden departure, we were left in a bit of a hole.

These details should be included in the contract of employment/ handbook.

And, yes, 10 days off for the death of grandparent is absurd. Presumably they have 4 of these, so that's 40 days. Then if it's 10 days for a grandparent, how much more must it be for parent's death??

I'd actually be tempted to put the person through the grinder for such a thing. I assume it was a unilateral decision? Then I'd hit them with 8 days for vacation - if they spoke before about it I would have certainly gone 50-50.

Compassion I do have but you don't make unilateral decisions about your employment conditions - unless you want me to do the same.

If the person is normally a good worker, I would give them a chance to explain themselves and come with an offer - after all, they must know it's taking the Michael a little.

I have a pair of size 11 boots I would use for this purpose

Oh, it's all a bit of a bloody mess. I only took over as head of the IR department of the Swiss branch of the company, which is splattered all over the world, a month ago and have had no end of hassle with administrative issues.

Almost feel like telling the senior chaps to stuff it and let me go back to being a general dogsbody.

Thank God it's New Years Eve tonight - an excellent excuse to cane unfathomable amounts of wine.

I'd get the person's history from HR with performance reviews and see what kind of player they are. I would be assuming right now that this is how they operated previously and you need to rule with an iron fist.

Also take the new year as an opportunity to lay out how you expect your people to behave going forwards?

Thanks, Lob Rockster. I'll come up with some kind of action plan and come down a bit harder. Guess the matey-matey approach won't work any more.

Says it all really - I'm the only muppet in the office this morning.

You have to remember above all else you are a manager.

You must remember this at all times.

This normally the case. I recently returned to the UK for the death of my Grandmother, and was given 1 day by the company (as per Handbook) and the other I took as "Holiday".

Pat

Had a flick through the contract and there's no mention of leave (except holiday) but the last clause says

"This Agreement is subject to substantive law and the exclusive venue is Zurich. The ordinary courts are competent".

This is the reason I had a look through the O.R. because I thought this was what it meant.

The plot thickens...

Sorry to bang on about this on New Years Eve.

Don't ever quote me on this, but this is the biggest problem with Swiss contracts. The Swiss believe everything is covered by OR and therefore miss out a lot of detail. And guess who ends up picking up the can.

Be aware that the iron fist approach here is not a guaranteed winner and you need to do a bit of work. The person is Swiss and so they will know their rights and probably also know a good lawyer. You are "only" the poxy foreigner who is now their boss...

You really need to speak this through with HR and thereafter ie after you have agreed your way forward speak jointly with the involved person making it clear that this is not acceptable although you understand their sad loss. Asking them to suggest a reasonable solution might also be a first step in the right direction.

It could be that this particular grandparent looked after them and brought them up after the untimely death of both parents or something similar so rushing in is really not to be advised. Get a story from the employer first and make it clear they caused a major inconvenience. Once you have dealt with this bollock HR for not making this clear in the employment handbook...

I would suggest a "we gave you this one, now you owe us one" approach - as making a big fuss out of it won't plug the hole you were left in, and I suspect the particular employee doesn't have many grandparents liable to pass away every year anyhow.

But then again, I'm no manager material.

good that i am subscribed to the Beobachter and can get more info

I copied this from their subscribers only website and below is a copy of the legal text out of the OR.
-------------------------------------------
Kurzabsenzen
Werden Sie bald heiraten, umziehen oder an einer Beerdigung teilnehmen? Dann muss Ihnen der Arbeitgeber für diese Anlässe freigeben. Allerdings legt das Gesetz nicht fest, wieviel Freizeit zu gewähren ist. Es spricht lediglich von den "üblichen freien Stunden und Tagen". Die meisten Firmen regeln die Absenzenfrage in einem Personalreglement oder direkt im Arbeitsvertrag. Auch viele Gesamtarbeitsverträgen enthalten entsprechende Bestimmungen. Ist in Ihrem Fall nichts geregelt, können Sie sich an folgende Richtlinien halten:

Heirat: 2 bis 3 Tage
Heirat eines nahen Verwandten: 1 Tag
Niederkunft der Partnerin: 1 Tag
Tod eines Familienangehörigen (je nach Verwandtschaftsgrad): 1 bis 3 Tage
Umzug des eigenen Haushaltes: 1 Tag

Ausserdem haben Sie Anspruch auf freie Zeit zur Stellensuche, wenn das Arbeitsverhältnis gekündigt ist (ca. halber Tag pro Woche).

Zur Bezahlung dieser Absenzen äussert sich das Gesetz nicht. Üblicherweise sind sie im Monatslohn bezahlt, nicht aber im Stundenlohn.
Gesetzesartikel: OR 329
------------------------------------

Art. 329

VIII. Freizeit, Ferien, Urlaub für Jugendarbeit und Mutterschaftsurlaub
1. Freizeit1
1 Der Arbeitgeber hat dem Arbeitnehmer jede Woche einen freien Tag zu gewähren, in der Regel den Sonntag oder, wo dies nach den Verhältnissen nicht möglich ist, einen vollen Werktag.
2 Unter besonderen Umständen können dem Arbeitnehmer mit dessen Zustimmung ausnahmsweise mehrere freie Tage zusammenhängend oder statt eines freien Tages zwei freie Halbtage eingeräumt werden.
3 Dem Arbeitnehmer sind im Übrigen die üblichen freien Stunden und Tage und nach erfolgter Kündigung die für das Aufsuchen einer anderen Arbeitsstelle erforderliche Zeit zu gewähren.
4 Bei der Bestimmung der Freizeit ist auf die Interessen des Arbeitgebers wie des Arbeitnehmers angemessen Rücksicht zu nehmen.
------------------------------------------


Yes it seems to be right that there is no definite amount of days listed in the OR,but the general list that the Beobachter writes is what is commonly used in Switzerland,when there is no specific mention in the contract .

So one way or the other,the employee has done something wrong ,of course it's hurting when you lose a close relative but he/she should have informed the bosses and organised the leave and time of leave! I am sure many a boss has an understanding for such things and will be generous,especially in this cases.

If the person was not contactable for the ten days, this is very close to 'Ungerechtfertigtes Verlassen des Arbeitplatzes', according to Art 337d of the OR and could lead to a instant dismissal!!

Obviously this is a delicate matter,what with the passing away of the grandparent and I hope and wish for you that you know have enough information now to deal with this matter appropriately.


Good luck!

EE

btw,do i get a green dot now

But apart from the excerpt from OR it is opinion. Beobachter may like to think it carries weight when it comes to its opinions but in this case every man and his dog creates such lists and indeed there are lists stated in law for normalverträge which do vary from Beobachters opinion.

With respect to 337d you would have very little chance of getting this through a court. The first paragraph starts with "If without an important reason..." Death of an immediate family member is defined as an important reason and seeing as the employer has an equal ( and in this case equally absent) responsibility to define the absence for such cases the dismissal would not stand.

If you'd care to read properly through what I posted then you would have got the inkling that the Beobachter ( and Kassensturz etc!!) states what is COMMONLY done on an AVERAGE if there is NOTHING else stated in a contract or Betriebsordnung!

Please do post the additional lists you mention,I would be all to happy to read them too,because i searched everywhere i knew and didn't find anything else!
After all you are one who's often asking for background info to underline/cement what one states in a post!

As for the 337d,The instant dismissal is a last resort,but the absence of ten days WITHOUT being contactable and without prior consent with the boss, is too much even for an important reason such as the death of a grandparent,and it can under this paragraph lead to a verbal or written warning or if it happened more than once,indeed to instant dismissal!

Unless you work at the same place as Sandgrounder you don't know if there isn't anything stated somewhere in their paperwork,so lets wait and see if Sandgrounder now finds anything.

In the meantime I am happily awaiting the additional lists you mention!

Thanks, Eastenders, for looking into this so much for me. I think dismissal is off the table as far as this employee is concerned. I think I'll play it so the employee knows that while I was deeply sympathetic to the loss, I was also deeply p*ssed off at the way they handled it.

Our company isn't set up with a proper HR department - the salaries and admin is farmed out to another company and holidays are normally agreed on an informal basis (i.e. we just check who else is off and cover accordingly). There's no real record keeping on performance of employees; again it's all totally informal.

Recruitment has been done in a kind of "Oh God, we desperately need a [whatever]. Quick contact all the agencies we know."

The Swiss branch has grown from a grand total of 3 (boss, assistant and secretary) to 12 people and the old principles still apply.

Writing about this has actually been quite enlightening to me and earlier posts from EF members have kind of given me the idea I need to try to implement some changes to the company - or at least the Swiss branch.

I think one of those business consultant chaps would have a field day in our place.

I am not interested in semantics of what you have written nor in getting into a debate. My point is/was Beobachter like KTipp provides information as guidelines and only occasionally as hard facts. In this case it is simply there view. Here is one such link you wanted from the official Swiss law site covering a normalvertrag:
http://www.admin.ch/ch/d/sr/221_215_324_1/a18.html

With respect to 337d, the problem Sandgrounder has or at least stated as having is the absence of a list for such situations. Given this a court will merrily throw out an instant dismissal case and with criticism to the company for not having defined this point.

As "normal" people we find it hard to understand how someone can simply disappear for ten days, but I have known of this before and with less well grounded reasons and the legal advice given is simply discuss with the employee, document and thereafter swallow it. If it happens again then it is a whole different ball game.

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?

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.