Dear all,
I have successfully found an agreement with my previous company, regarding the non-competition clause issue I described at the beginning, and I would like to share my experience with other users, in case they will come across something similar.
Following different advices, I hired a lawyer, specialized in labor law, who provided me with very precious information. I will try to explain what I have understood, but as I'm not a lawyer, please don't consider what I'm going to tell as a legal fact, the situation might hical structure with well defined roles and responsibilitieschange in the future and the best thing you can is to hire a specialist who will best provide the assistance you need.
The whole story is about the concept of "who is the employer", from a legal point of view.
For this purpose, there are essentially two types of employers. The first is the traditional one, he pays your salary, provides the instruments for your work, takes care of social security and insurances, puts you in a hierarchical structure with well defined roles and responsibilities.
The second type is the "consulting company" which provides "personalverleih", or lending personnel for temporary engagements.
This setup is common to many IT or business consulting company, small or big, and is not restricted to temporary workers only. In fact, most of these companies hire permanently their employees (it's their investment), with the purpose of lending them to their customers, often for medium or long term engagements (many months or even several years).
In such case, very often the employee takes instructions directly from the customer, is provided with tools (e.g. a laptop, a badge for enetering the buildings, a desk, an email, etc), with specific training (e.g. for security), with insurance in case of accidents, and even with internal evaluations sometimes, and often he/she does not even go to the employer's office for months.
Even more, the customer itself explicitly demands such rights in the SLA with the employer, requesting to be able to directly manage the person lended to it.
Well, the Swiss law distinguishes these two cases, by assigning the customer a "similar to employer" status, and the whole jurisprudence treats the two cases in a completely differently way.
In the former (traditional) case, the non-competition clause applies fully, but in the latter, denying the possibility to the employer to quit the first employee and be hired at a second one WHILE KEEPING THE SAME CUSTOMER, would not infringe any rule, as the "real" employer (i.e. the customer) would remain the same. Moreover, it would be against the costitutional right of the employee to determine his/her better condition of working and to support for himself/herself.
In this case, the non-competition clause does not apply at all, and even recent addenda to the existing labor law have confirmed this interpretation.
Finally there is another consideration to make. If the employer decides to take the case to court and start a litigation with the former employee, it will likely damage the current business and operation of the customer, making it rather upset.
For a "consulting" (i.e. with personverleih) company, this can lead very often to fatal consequences.
Coming to my personal experience, my former employer wanted to be compensated for the loss of the customer, asking an absurdly high amount of money. As I said before, I hired a lawyer very expert labor law from a renowed firm ,and using his advices I had a meeting with my former employer, explaining my rights and reasons.
At the end he had to acknowledge my rights, probably also because I made it very clear that I was ready to go to court, if I had to, which would very likely have resulted in some tens of thousend CHF bill for him - btw: Swiss courts hate to be disturbed for these clear cases, and generally punish the initiator.
Anyway, for sake of keeping in good relationship, I agreed to pay to my former employer 1.5 months of my salary, as a sign of "empaty" for the loss of business he will have to incur.
Of course also my customer was very happy, because she had just assigned an important project to me, and didn't want to have any trouble whatsoever.
As final consideration, I feel that the agreed solution is rather equilibrate, as it defend my legal rights but at the same time acknowledges a sort of "compensation" to the employer. I could have insisted, and run our without paying a franc, but I would have burned the bridges, "winning the war but loosing the peace".
Here it is my summary, I hope they can provide some more light in this "grey zone" (as it was defined by the lawyer himself):
- Non-competition clause: examine your working situation trying to understand whether it is applicable or not
- try to find out if your company has a "personalverleih" (there is a link to the public registry here:
http://www.avg-seco.admin.ch/WebVerz...WebVerzeichnis
If your employer is there, in its SLA with the customer it is almost for sure mentioned that the customer is your real manager, thus voiding the non-competition clause
- don't burn the bridges behind yourself: better to pay something and keep a relationship, or even a potential future business
- MOST IMPORTANT: invest some money in a GOOD lawyer, specialized in labor law, who will examine carefully your case and will provide the best advice.
Hope this helps.
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