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Old 08.10.2014, 01:38
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Dismissal with immediate effect

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!
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Old 08.10.2014, 01:57
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Immediate dismissal must be justified in Switzerland. Normally, it is done for a gross negligence, criminal conduct, or a very serious incident at work. It can NOT be done for poor work performance.

Immediate dismissal must happen 3-4 days after the incident has happened. I think that waiting for 10 days already is too much for immediate dismissal, but I can not be sure of that. This means that the employer can NOT use something that you did e.g. 2 months ago as a reason for immediate dismissal.

Surely, they must justify it. Did you do anything that could be characterized as a serious incident (beat up someone, steal company property, shagged CEO's wife?).

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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.
Doctor's certificate has no effect on immediate dismissal, as I understand.

Last edited by 3Wishes; 09.10.2014 at 16:00. Reason: merging successive posts
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Old 08.10.2014, 02:03
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Immediate dismissal must be justified in Switzerland. Normally, it is done for a gross negligence, criminal conduct, or a very serious incident at work. It can NOT be done for poor work performance.

Immediate dismissal must happen 3-4 days after the incident has happened. I think that waiting for 10 days already is too much for immediate dismissal, but I can not be sure of that.

Surely, they must justify it. Did you do anything that could be characterized as a serious incident (beat up someone, steal company property, shagged CEO's wife?).
None of these (yet). Possibly breaking some procedures in the course of doing business, but with no materials harmful end result... Waiting to find out soon, I have mandated a lawyer to request the reasons from the company...

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Doctor's certificate has no effect on immediate dismissal, as I understand.
Thank you again. I know that I cannot claim that the termination letter is void, as the provisions of article 336 do not hold; what I am trying to find out is whether my termination date can be moved to the first date that the doctor considers me fit for work - hence receiving my salary whilst sick..

Last edited by 3Wishes; 09.10.2014 at 16:01. Reason: merging successive posts
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Old 08.10.2014, 02:06
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Re: Dismissal with immediate effect

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None of these (yet). Possibly breaking some procedures in the course of doing business, but with no materials harmful end result... Waiting to find out soon, I have mandated a lawyer to request the reasons from the company...
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
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Old 08.10.2014, 02:10
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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
Thank you so much - it s relieving reading this. Playing devil's advocate and preparing for the worst though, if the immediate dismissal is substantiated, can I expect to receive even 80% of my salary from the insurance till I recover? Or I get nothing, zero, zilch?
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Old 08.10.2014, 02:12
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Re: Dismissal with immediate effect

I dont know that, sorry.
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Old 08.10.2014, 02:13
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Re: Dismissal with immediate effect

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I dont know that, sorry.
Thank you, you be given so much info already!

Can I start getting unemployment benefit, or not? My understanding is that I need to be fit for work and I am not (yet)...
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Old 08.10.2014, 09:22
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Re: Dismissal with immediate effect

You hint you're unfit for work, have you been fired whilst signed off by a doctor?
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Old 08.10.2014, 09:28
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Re: Dismissal with immediate effect

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You hint you're unfit for work, have you been fired whilst signed off by a doctor?
Goodday Sean,

Yes - with a medical certificate valid for 10 calendar days, I was fired on the 10th day, although my sick leave was prolonged by my doctor for a couple of weeks and the employer was informed...
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Old 08.10.2014, 09:29
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Re: Dismissal with immediate effect

so you're being fined for deserting your post but you have a sicknote valid for this time?

as far as I'm concerned, that's illegal. what are you claiming and have they been following you or something? Also how long have you been employed?
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Old 08.10.2014, 09:58
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Re: Dismissal with immediate effect

When your well, you will be entitled to Rav benefits if you qualify, the same as everyone else. You might get a punishment if they think you were at fault. They have lawyers who will look into the firing if they think it's illegal
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Old 08.10.2014, 09:59
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Re: Dismissal with immediate effect

This happened to a colleague at work, he turned up to work on Monday and they told him to go home.He was however signed up to a legal protection for workers insurance, he got them on the case and he won, received compensation.
Don't know if this helps you but maybe you can find this organization and see if they will look into the case.
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Old 08.10.2014, 10:04
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Re: Dismissal with immediate effect

An Introduction to Swiss Employment Law - gj-partner.ch

www.gj-partner.ch/scripts/downloader.php?file=/resources/men...
Employment Contract, Articles 319-362. RA Martin Amsler ... Art. 361 OR (Swiss Code of Obligations) ... OR Art. 337: (Termination without notice). For valid ...

c) Dismissal without notice
In case of unjustified dismissal the employee is entitled to his compensation for as long as the relationship would exist, had the contract been terminated upon a proper notice. In addition to that the employee may be awarded an indemnity not exceeding a six months' wage. The employee who does not appear with a valid reason is subject to a claim of one quarter of a one months' wage and may face further claim for damages.

OR Art 337c (In case of unjustified dismissal).
If the employer dismisses the employee without notice in the absence of a valid reason, the latter shall have a claim for compensation of what he would have earned if the employment relationship had been terminated by observing the notice period or until the expiration of the fixed agreement period. The employee must permit a set-off against this amount for what he saved because of the termination of the employment relationship, or what he earned from other work, or what he intentionally failed to earn.

The judge may obligate the employer to pay an indemnity to the employee which he may determine in his discretion taking into account all circumstances. Such indemnity may not, however, exceed the employee's wage for six months. OR Art. 337d (In case of unjustified non-appearance at or leaving the working place) If the employee, without reason (Art 337), does not appear at the working place, or if he leaves it without notice, the employer shall have a claim for compensation equal to one quarter of the wage of one month, and moreover he shall be entitled to compensation for additional damages. The judge may reduce the compensation in his discretion if no damage was caused, or if the damage was less than the compensation provided for in the foregoing paragraph.
- 7 -
If the claim for compensation is not extinguished by set-off, it shall be asserted by legal action or debt enforcement within thirty days from the failure to appear at or leaving the working place; otherwise the claim is forfeited.
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Old 08.10.2014, 10:10
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Re: Dismissal with immediate effect

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Did you do anything that could be characterized as a serious incident

shagged CEO's wife?).
Does that really qualify? Unless it was at work on his desk at work.
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Old 08.10.2014, 10:34
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Re: Dismissal with immediate effect

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so you're being fined for deserting your post but you have a sicknote valid for this time?

as far as I'm concerned, that's illegal. what are you claiming and have they been following you or something? Also how long have you been employed?
Hi Sean,

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.

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....

And what are the social benefits for my case? As long as I am sick, I cannot qualify for unemployment benefit...
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Old 08.10.2014, 12:39
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Re: Dismissal with immediate effect

Social benefits would depend on your permit type & if you have any assets.
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Old 08.10.2014, 12:40
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Re: Dismissal with immediate effect

If you contact the RAV about this, I'd imagine they'd advise you on the law or point you in the direction of someone who can.
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Old 08.10.2014, 13:05
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Re: Dismissal with immediate effect

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Hi Sean,

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.
depending on the industry* - YES, this could result in immediate dismissal - and possibly investigation by a regulatory authority - with potential risk of fines and imprisonment - for both individual and company






*Banking
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Old 08.10.2014, 15:05
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Re: Dismissal with immediate effect

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Hi Sean,

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.

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....

And what are the social benefits for my case? As long as I am sick, I cannot qualify for unemployment benefit...
Are you sure that is what you are being fired for? Like was said above, they need to fire you within a few days of the incident not after the incident and then 10 days after you are sick. Unless of course they only found out now about something you did in he past.

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".
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Old 08.10.2014, 17:09
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Re: Dismissal with immediate effect

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Are you sure that is what you are being fired for? Like was said above, they need to fire you within a few days of the incident not after the incident and then 10 days after you are sick. Unless of course they only found out now about something you did in he past.

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".
Thank you for your answer; I suspect they found out recently... and yes, I am really sick and potentially will result in a burn out, meaning that I will get no payments neither from my employer nor RAV...

Can they fire someone while on sick leave? I understand that under Section 336 the termination is void, whereas under 337 it is valid; I am just wondering about the final termination date - would my sickness shift my end date 1 or 2 weeks?
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