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Old 03.06.2015, 19:48
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Questions about prohibition period and Signing Employment Contract

Hi,


I have two questions, kindly
Assuming nothing specific is writing in the working contract, and it follows the general Swiss Law of Employment


1) Probation period

Normally there is a 3 month probation period when someone starts new employment, the employer can during this period give 7 days notice to the employee to terminate the agreement

The question is, does it work the other way as well ? can the employee give a 7 days notice period during this period to terminate the contract ?

2) Signing Employment Contract

If both employer and employee signed a contract, then before the start date the employee got a better job offer, although morally it doesn't look nice - but my question is about legal aspects, what are the obligations that the employee needs to do for the employer to cancel this contract and go for the other employer - if nothing specific is written in the contract about that ?

Thanks in advance

Last edited by misr; 03.06.2015 at 20:12. Reason: probation
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Old 03.06.2015, 20:06
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Re: Questions about prohibition period and Signing Employment Contract

I'm pretty sure you mean "probation" period, and yes normally the notice period is the same on both sides.

On the second point, you have to give the notice stated in your contract (and in theory you could give this notice before you start). In practice for a normal job an employer would have to be pretty dumb to take on a reluctant employee anyway.

This has happened to me, it was very annoying but the person spoke to me and explained with an apology, so there were no hard feelings. Realistically you have to do what is right for you.
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Old 03.06.2015, 20:18
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Re: Questions about prohibition period and Signing Employment Contract

I was resisting the EF urge to say you aren't allowed to drink alcohol during this time.
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Old 03.06.2015, 20:38
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Re: Questions about prohibition period and Signing Employment Contract

I found this useful link: http://www.etiennebesson.com/probati...n-switzerland/


Probationary period in Switzerland: is it mandatory, how long does it last, and what is the notice period?
This article discusses only the most basic situations without taking into account any exceptions or wicked scenarios any good lawyer could come up with.
And by the way, Iím not a lawyer. So please read the legal disclaimer at the end of this article. And to use my own words: consult a professional before making decisions that could have consequences of any kind.
Legal background

The probationary period is defined in the Swiss Code of Obligations art. 335 b.
The CO is available here (html and pdf):
Obligationenrecht | Code des Obligations |Codice delle Obbligazioni
What if the probationary period isnít mentioned in the employment contract?

In this case the probationary period lasts automatically 1 month with a notice period of 7 days.
Minimum and maximum durations

Itís possible to renounce the probationary period altogether or to chose any duration of up to 3 months, as long as this is agreed in written. This is usually part of the employment contract or the Personnel Policy, which must of course be declared as an integral part of the employment contract.
The only possibility to extend the probationary period beyond 3 months is if the employee was unable to work in case of sickness, accident or fulfillment of a mandatory legal obligation (eg military service). In this case the probationary period can be extended by the same number of days that the employee missed work.
Duration of the notice period

Itís possible to deviate from the 7 days notice period if a written agreement is signed by both parties.
The minimum is zero days, in this case the contract ends as soon as one of the parties communicates their will to end the contract.
From what I understand the law doesnít define a maximum duration, but it seems reasonable to have a notice period that is shorter than the one after the probationary period.
When does the notice period start


Unless there is no notice period, i.e. the duration is zero days, the notice period starts the day following the communication. This is the big difference to a notice period after the probationary period, which always starts at the beginning of the following month.
Last possibility to resign or terminate the contract during the probationary period

Itís still possible to end the contract on the last day of the probationary period and it doesnít matter if the notice period ends when the probationary period is already over.
However, the other party must receive the notice during the probationary period. For example, if the probationary period ends on a Sunday, then you should make sure that your manager receives your resignation latest on Friday.
No protection during the probationary period

A company can terminate the employment contract during the probationary period even if the employee is unable to work due to sickness, accident or legal obligations.
Of course thereís many more aspects to the probationary period, but these are the main elements. Everything else is a story for another day.
Sources


  • Swiss Code of Obligations (not available in English, see above for links to other languages)
  • Streiff Ullin/von Kaenel Adrian: Arbeitsvertrag (6. Auflage), ZŁrich 2005 (in German)
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Old 03.06.2015, 20:59
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Re: Questions about probation period and Signing Employment Contract

And this is about canceling the contact before starting it


Under Swiss law, a probationary period of one month - which can be extended to a maximum period of three months - applies in the case of an employment contract that is not limited in duration.


During the probationary period, a notice period of seven days applies. Thereafter, during the first year of service, a minimum notice period of one month applies, provided that the parties have not agreed to extend this period.


It is often the case, however, that the employer enters into a probationary period with an employee that is too long and also agrees a notice period that is longer than the minimum required. The question then aris-es as to which notice period applies.


Recently, the Swiss Federal Tribunal had to decide a case (4A_88/2010) in which the parties had agreed a probationary period of six months. A notice period of three months as of month-end was stipulated for the time following the expiration of the probationary period.


The employer terminated the employment relation-ship in the sixth month, subject to the notice period of one week agreed upon for the probationary period. The employee claimed that the three-month notice period should apply. The Federal Tribunal decided that the parties wished to have a notice period apply during six months that was as short as possible and that this period therefore constituted one month.


The question of whether an employment relationship can be terminated prior to commencement of em-ployment and the question as to the consequences of such a termination are also controversial.


To this extent, the Swiss Federal Tribunal has not yet decided the latter question. Recently, a Cantonal Court had to decide a case in which an employer terminated an employment contract a few days after having signed it, more than four months prior to the commencement of employment. The Cantonal Court followed the clearly prevailing view and declared that termination prior to the commencement of employ-ment is permissible.


What is not clear still are the consequences of such a termination. According to one line of thought, the notice period begins to run upon the employee's receipt of the notice of termination. Another view is that the notice period does not begin to run until the contemplated commencement of employment, so that the employment relationship does not terminate until the end of the notice period that applies once the job has been commenced proper.


The Cantonal Court decided, in our view correctly, that an ordinary termination is also possible prior to commencement of the employment relationship. Therefore, there was neither any commencement of work nor any salary payment.


The court based this decision on the rationale that the notice period is intended to give the parties time to seek a new position. As long as the notice period is observed this purpose is met. If one were to adopt the alternative viewpoint, this would lead to the dissatisfactory result that an employee would have to take up employment for a short period of time if the parties were unable to agree on a can-cellation agreement.
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