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  #21  
Old 08.10.2014, 20:43
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Re: Dismissal with immediate effect

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I am being fired for not following the exact procedure for servicing my company's clients... They have not stated the exact reasons yet and my lawyer is looking into it; I am sure though that they will find a reason to substantiate it.
I think this is a very serious situation and I expect that the company has taken this action based on legal advice to protect themselves, otherwise they would simply have terminated you in the normal way: notice period plus not reason for the termination. That being the case, I suggest discussing it on a public forum is probably not a good idea.

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My question is whether they can fire me based on 337 (like gross misconduct) while being off sick, and the answer is yes; but I am interested to know whether I am being paid till I recover or not....
Such a termination has an immediate impact - your employer has no further contractual responsibilities towards you and consequently they are not responsible for paying sick pay etc. The long term sick pay is usually covered by an insurance and if you have contributions deducted from you salary for this insurance, you might have a small chance, but I'd say it will be hard going given the circumstances.

The unemployment instance does allow for sick pay, but it is for a very short period and I think you have to start off as being employable and then get sick while being on the register, I don't think you can start off as being sick and even if you could it would be for a short period like 30 days or so.
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  #22  
Old 09.10.2014, 10:56
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Re: Dismissal with immediate effect

Yes, you can get fired with immediate effect even if you're out sick.

However, I'd like to add and ask a few things to clarify the situation.

Is this termination with immediate effect in the sense of "pack your bags and leave, no notice period, no salary as of immediately" or termination with immediate effect in the sense of "pack your bags and leave, but they stick to the notice period and pay your salary until the end of that notice period"? I've seen many people confuse the two, but it's not the same.

Generally, you can't get fired with immediate effect (= option 1 above) without at least one prior, explicit warning. That even applies to severe misconduct, though there's probably some room for interpretation in this. What the heck did you do? What does "not following procedures" mean? If you embezzled 3 million $$, well then off you go and good luck. If you just made a mistake once, then an immediate termination is hardly justified.

Except for justified (!) immediate termination, if you are out sick and have a medical note, you can't get fired for a certain period of time. The termination will not just be postponed, but is void and has to be re-issued once you're either back at work or after the 'blocking period' has expired.

That blocking period refers to a certain number of days during which a termination is illegal. By law, it's 30 days in the first year of service, 90 days from the 2nd and 5th year of service and 180 days after the 6th year of service. Companies may choose to extend these time periods, but are not allowed to reduce them.

The continuation of payment during illness is a separate matter. There are different frameworks in Switzerland (Basler, Zürcher and Berner Skala), so for instance in the Zürcher Skala, the continuiation of salary payment is 3 weeks in the 1st year of service, 8 weeks in the 2nd year, 9 weeks in the 3rd year and so on.

So bottom line: if the immediate termination is justified, then there's zero you can do. If the immediate termination is not justified, then the termination is void.

Get legal help or at least write here what it is you did.


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The other thing could be that someone saw you out and about having a grand old time by the lake while you were off sick. My friend told me about a colleague of hers that this happened to. She was spotted skiing while "off sick".
Even then it might not be justified. With a broken arm, depending on what your job is, you might well not be able to work, but can do tons of things outside of work. And especially burnout patients are even encouraged to go out and not withdraw from social life altogether. OK a ski weekend or partying until 5am doesn't fall into that category and would be pushing it for sure. But there are some grey zones.
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  #23  
Old 09.10.2014, 11:24
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Re: Dismissal with immediate effect

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Generally, you can't get fired with immediate effect (= option 1 above) without at least one prior, explicit warning. That even applies to severe misconduct, though there's probably some room for interpretation in this. What the heck did you do? What does "not following procedures" mean? If you embezzled 3 million $$, well then off you go and good luck. If you just made a mistake once, then an immediate termination is hardly justified.
If you work in a regulated environment (GxP, accounting, banking, etc), any deliberate deviation from an SOP could potentially be considered 'gross misconduct.'

Similarly, anything involving deliberate fraud or an attempt to circumvent internal controls.
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  #24  
Old 09.10.2014, 12:08
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Re: Dismissal with immediate effect

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The other thing could be that someone saw you out and about having a grand old time by the lake while you were off sick. My friend told me about a colleague of hers that this happened to. She was spotted skiing while "off sick".
Exercise and vacation are good drug-free alternatives to treat illnesses such as depression. Spotting someone out seemingly well and enjoying themselves while off work sick does not necessarily mean they are pulling a sickie! These people would/should have normally discussed it with their doctor so that they are able to back up their story as unfortunately mind health is often misunderstood.

OP sorry I can't help with the original question!
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  #25  
Old 09.10.2014, 12:55
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Re: Dismissal with immediate effect

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If you work in a regulated environment (GxP, accounting, banking, etc), any deliberate deviation from an SOP could potentially be considered 'gross misconduct.'

Similarly, anything involving deliberate fraud or an attempt to circumvent internal controls.
I know.

The thing is that I've seen people confuse "immediate termination" with "termination with immediate leave", and I've also seen employers abuse all of this, wanting to fire employees with immediate effect, just because they didn't particularly like them or because they made a few minor mistakes. Sometimes, the employee was even stupid enough to agree to that.

The main issue is the previous warning(s), which may or may not be necessary to justify immediate termination... And of course OP should really clarify what in God's name it is he (supposedly) did... Without that information, it's impossible to say whether he has right on his side or not.
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  #26  
Old 09.10.2014, 13:00
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Re: Dismissal with immediate effect

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And of course OP should really clarify what in God's name it is he (supposedly) did... Without that information, it's impossible to say whether he has right on his side or not.
I don't see that information coming forward anytime soon - do you?
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  #27  
Old 09.10.2014, 13:09
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Re: Dismissal with immediate effect

Been there done that.
You can still claim from the companies illness insurance
for 720 days. As long as you became ill while you were
working at the company.You don't have to still be employed.
They will pay you 80 % of your package as long as you
supply doctors certificates of 100% incapacity.
Contact HR at your company.
Register with RAV and keep as a backup for when
you can work again.RAV can also pay you up to 2 months
sick pay.

Last edited by MarkH; 09.10.2014 at 13:26.
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  #28  
Old 09.10.2014, 13:18
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Re: Dismissal with immediate effect

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I don't see that information coming forward anytime soon - do you?
I believe in people
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  #29  
Old 09.10.2014, 13:20
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Re: Dismissal with immediate effect

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Register with RAV and keep as a backup for when
you can work againThey can also pay you up to 2 months
sick pay.

Mark, when you wrote "they", did you mean, the RAV? Is it so that the RAV will pay 2 months sick pay?
I thought that it was a prerequisite, to get unemployment benefits from the RAV, that one be "vermittelbar", capable of working. Have I misunderstood something?
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  #30  
Old 09.10.2014, 14:31
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Re: Dismissal with immediate effect

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Mark, when you wrote "they", did you mean, the RAV? Is it so that the RAV will pay 2 months sick pay?
I thought that it was a prerequisite, to get unemployment benefits from the RAV, that one be "vermittelbar", capable of working. Have I misunderstood something?
The RAV won't accept you until your fit, if your claiming the RAV & then ill they will pay a maximum of 44 days sickness, however the max is 30 days in a single episode.
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Old 09.10.2014, 18:56
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Re: Dismissal with immediate effect

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Even then it might not be justified. With a broken arm, depending on what your job is, you might well not be able to work, but can do tons of things outside of work. And especially burnout patients are even encouraged to go out and not withdraw from social life altogether. OK a ski weekend or partying until 5am doesn't fall into that category and would be pushing it for sure. But there are some grey zones.
I'm sure there is more to the story than my friend knows. But the person in question apparently was on burn out for 8 months. I'm sure the company had had enough.

Anyway, as to the OP's problem. I think only getting more info from the employer on exactly why they are being fired and with what notice is going to help.
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  #32  
Old 09.10.2014, 21:16
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Re: Dismissal with immediate effect

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The RAV won't accept you until your fit, if your claiming the RAV & then ill they will pay a maximum of 44 days sickness, however the max is 30 days in a single episode.
Not true. I have been registered with RAV for 9 months already
while receiving illness insurance payments.You just indicate that
you are ill on the arbeidslosenkasse monthly form, and check the box that
you have illness insurance.As a non-eu I had to register with RAV to get my permit renewed.
I was very ill already when I registered with RAV.It's possible that if you don't
have illness insurance they may pay you for 22 working days per month.This they will do for 2 months.Not sure how they would split the days up though.
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  #33  
Old 09.10.2014, 22:00
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Re: Dismissal with immediate effect

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Not true. I have been registered with RAV for 9 months already
while receiving illness insurance payments.You just indicate that
you are ill on the arbeidslosenkasse monthly form, and check the box that
you have illness insurance.As a non-eu I had to register with RAV to get my permit renewed.
I was very ill already when I registered with RAV.It's possible that if you don't
have illness insurance they may pay you for 22 working days per month.This they will do for 2 months.Not sure how they would split the days up though.
Ok I am reporting what I was told on A RAV intro course in English in ZH in May 2013. I have no reason to be dishonest & give incorrect advise. FWIW I don't have illness insurance that covers salary, very few people do it's an unusual situation.

If your ill continuously they will NOT pay for 2 months, just 30 working days. 44 Days illness is the Maximium payment in a Rahmenfrist.
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  #34  
Old 09.10.2014, 22:31
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Re: Dismissal with immediate effect

is OP in prison or maybe following his lawyer's advice?
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  #35  
Old 10.10.2014, 20:50
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Re: Dismissal with immediate effect

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Hello there,

As you can see from my nickname, I was recently fired by my employer on the basis of Article 337 of the Swiss Code of Oblogations. I don't know the exact cause yet, but I know that the employer will find a reason (or two) to substantiate my immediate dismissal as a just cause.

My question though is the following: 10 days before I was fired, I had some burn out symptoms, and the Family Doctor gave me 10 days off; I was fired on the day that the 10-day off period was expiring, although the doctor prolonged that period for two weeks.

I understand that being fired under 337 cannot be classified as void, however do I get paid while I am sick?

Apologies for my first post to be so sad, but I searched quite a lot and cannot find the answer....

Thank you all!
If you were sick in that period simple they can not fire you (you are protected)- I assume you even were not in the office. On the other hand they have to justify it - if they can not do to at the Court they are in big trouble (and I think it is pretty hard to do so). I would suggest talking to a lawyer and just simple sue them.
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  #36  
Old 10.10.2014, 23:02
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Re: Dismissal with immediate effect

The employer has the right to challenge a medical certificate and request an independent second opinion, at their cost- but not sure about timing. Of course with any mental illness or burn out- it must be difficult to assess for sure.

Being stressed or under pressure because you've broken the terms of your contract, for instance, would not necessarily be accepted for a medical certificate.

Last edited by Odile; 10.10.2014 at 23:31.
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  #37  
Old 16.04.2015, 22:58
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Re: Dismissal with immediate effect

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Everyone makes mistakes at work. If there was no gross negligence, and/or criminal behaviour, this can not be a reason for immediate dismissal. They can let you go (i.e. terminate your employment in a normal way), but not immediately.

Which means in practice:
- you are employed as long as your sick leave is valid
- the normal termination period must be paid (and you need to work for that period). This starts after you come back to work.

Important:
- do NOT sign anything they give to you. Noone can force you do sign it
- get a lawyer
What happens if you sign what they give you?
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  #38  
Old 17.04.2015, 00:47
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Re: Dismissal with immediate effect

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What happens if you sign what they give you?
Depends what is written on the paper
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  #39  
Old 17.04.2015, 00:51
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Re: Dismissal with immediate effect

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What happens if you sign what they give you?
You are forced to shit bricks.

Seriously though, they might give you some paperwork that makes you agree to part ways "amicably". By "amicably" I mean that you agree that it was all your fault and you absolve you former employer of all responsibility for the situation. There are some rights that you cannot sign away, so you might challenge certain clauses in court. It is always a risk however and companies will try to get away with the minimum possible exposure to litigation and expenses.
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Old 17.04.2015, 03:15
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Re: Dismissal with immediate effect

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Depends what is written on the paper
Yeah makes sense, sorry....see below..

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You are forced to shit bricks.

Seriously though, they might give you some paperwork that makes you agree to part ways "amicably". By "amicably" I mean that you agree that it was all your fault and you absolve you former employer of all responsibility for the situation. There are some rights that you cannot sign away, so you might challenge certain clauses in court. It is always a risk however and companies will try to get away with the minimum possible exposure to litigation and expenses.
This has just happened to someone I know who signed and accepted it and I think its not right as to how it was carried out. Arbitary reason given as 'doesn't fit in' (not exact wording; just read through it briefly and can't recite the exact words in German) and that termination is immediate and that the salary will only be paid till that date of termination. All leave will be paid, keys to be handed in etc
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