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  #41  
Old 13.05.2011, 16:06
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Re: Lost my job due to illness

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I thought that it is possible to terminate a contract when an employee is off sick during the first year? This is what I was told when the company I was working for was doing mass lay-off's & I was off sick. I was still made redundant as I had only been employed for 8 months or so.
They have to wait until you get back to work to let you go assuming
you have a valid doctor's note.
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Old 13.05.2011, 16:32
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Re: Lost my job due to illness

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I don't want to be the spoilsport here but seriously:

a) You can get fired in Switzerland easily. Employers can simply say "for economic reasons" and kick out who they want.... especially as the OP is not some case of social hardship being a father of five and only months away from retiring or something.

b) notice period is one month.

c) he has been fired today, that's the 13th. If it was the 31st and there was a case that they cannot fire him on a day where he was officially signed off, you could possibly fight for one more month. As it is the beginning of the month, I do not think any Swiss court will see a case here...

d) honestly: Unless any of you has first hand experience on how hight the legal costs are and how high your chances are, stop telling him to go to a lawyer or court: The possible gain is minimal, one more month at max, while the possible financial risk might be huge.

e) reference letter. Yes, you need to get a one and it should be positive and factual. In this case was the OP actually only there working for some few weeks. What can he expect more than a letter saying "he was employed from x to y and his duties were..." ? You will not get a lot of praise and you will not have a lot of achievements to mention, no?

I have been in a similar situation and managed to fight for an extra month when an employer tried to screw me (well, not my boss but the nastiest HR manager I ever met). I would go for a direct discussion and not run to a lawyer or union or any external party. At that point you lost any goodwill you probably still have and they will give you the legal minimum, produce the documents as slow as they are legally allowed to and so on... karma comes in a full circle.
Unfortunately, I have taken a former employer to court. The maximum that you can receive is either the contract amount or 56,000 CHF. In the
OP's case, he would only receive one month.

Treverus is right to take up the matter directly with HR to get a GOOD
work certificate if you plan to stay in Switzerland. If they don't give
you one, get an attorney only then.

In my wonderful experience, I spent much more on the attorney
than he/she originally stated, and I did not receive the
whole amount the attorney said I would get.

Remember, attorneys want to MAXIMIZE BILLABLE HOURS...
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  #43  
Old 13.05.2011, 16:32
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Re: Lost my job due to illness

Id get a second opinion on this from a lawyer or the arbeitgericht, you can be sick in Switzerland for 6 months before they can fire you ...so you may have a case against your employer, If you were still sick and they fired you ...then you have a case IMHO. Even if the reason they fired you was because they didnt like your haircut.
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Old 13.05.2011, 16:41
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Re: Lost my job due to illness

I'm very sorry that you are ill (well, hurt) and that they were crass enough to fire you.

You've had lots of good advice. Tell us what the RAV says and take care of yourself.

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  #45  
Old 13.05.2011, 16:47
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Re: Lost my job due to illness

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thanks, I had the hernia in my cervical spine
I too had a hernia in my cervical spine (a couple in fact)
I had these operated on a few years ago and it hasn't really helped.
I have difficulty turning my head and headaches a great deal of the time.
It's not a fun situation and I feel for you.
Losing your job is the last thing you needed.
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Old 13.05.2011, 23:18
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Re: Lost my job due to illness

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I too had a hernia in my cervical spine (a couple in fact)
I had these operated on a few years ago and it hasn't really helped.
I have difficulty turning my head and headaches a great deal of the time.
It's not a fun situation and I feel for you.
Losing your job is the last thing you needed.
I feel very sorry for you. My biggest worry has been that the hernia would never fully heal. It is much better now but still not 100%. Getting back to full health is my biggest priority.
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  #47  
Old 13.05.2011, 23:24
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Re: Lost my job due to illness

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I'm very sorry that you are ill (well, hurt) and that they were crass enough to fire you.

You've had lots of good advice. Tell us what the RAV says and take care of yourself.

yes, I'll let everyone know what the rav says and exactly what the letter from my (former) employer contains when I get it next week. My priority is to get a decent reference from them so as not to make my search for employment more difficult.
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  #48  
Old 13.05.2011, 23:27
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Re: Lost my job due to illness

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They have to wait until you get back to work to let you go assuming
you have a valid doctor's note.
well, I'm off sick until the 23 so that didn't happen
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  #49  
Old 14.05.2011, 08:55
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Re: Lost my job due to illness

In this case it would also be a bit interesting to know more about the company..small, medium or large?

I'm not excusing their behaviour in this case, but many Swiss companies are doing it tough and struggle to carry medium-to-long term sick leave, especially smaller ones. As one previous poster suggested, sick leave can also be used as a cover excuse...only they know the true reason for firing you.

Clues to this can often be found in your reference letter. If they don't "regret your departure" in the last paragraph, it means they are glad to see you go.
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Old 14.05.2011, 09:21
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Re: Lost my job due to illness

Unfortunately the OP is a victim of circumstance.
From the companies point of view, they have a position that they need a 100% headcount, hence Rambo getting the job, then a few weeks later he's off work, then back, then off long term with an injury that may well be re-occurring.
His colleagues will no doubt be complaining that they are having to cover the work load or things are backing up. He hasn't been there long enough to build the bonds or network of friends or endear himself to his managers.
No doubt his manager is suffering as the team is under par.

Why wouldn't they terminate him? I would have. It's a bad start and with no track record why take a chance and have the disruption and risk he's off for weeks at a time?

Dack has it right already. Get the reference, get better, move on.
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  #51  
Old 14.05.2011, 15:26
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Re: Lost my job due to illness

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In this case it would also be a bit interesting to know more about the company..small, medium or large?

I'm not excusing their behaviour in this case, but many Swiss companies are doing it tough and struggle to carry medium-to-long term sick leave, especially smaller ones. As one previous poster suggested, sick leave can also be used as a cover excuse...only they know the true reason for firing you.

Clues to this can often be found in your reference letter. If they don't "regret your departure" in the last paragraph, it means they are glad to see you go.
I worked for a very large and profitable company. I got the letter yesterday evening confirming my sacking. Interestingly it exagerates the amount of time I have been out sick so I will write to HR asking them to correct this. I will get paid until the end of June and will receive my reference then.
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Old 14.05.2011, 15:27
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Re: Lost my job due to illness

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Why wouldn't they terminate him? I would have. It's a bad start and with no track record why take a chance and have the disruption and risk he's off for weeks at a time?
don't you see any alternative here such as requiring the taking of holidays or an unpaid leave of absence?
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Old 14.05.2011, 15:47
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Re: Lost my job due to illness

Hi ,

Sorry to hear of your situation. Hope your illness is gets better soon.

As for the work side of things . The RAV is definitely the best place to go. Believe me if they don't have to pay you unemployment insurance at this moment in time they won't. They will need to know exactly what happened with your particular situation in order to assess if they need to cough up. They will pick up on any foul play by your company and advise you accordingly.

There are 2 webpage links below which may help.
Also, another link to a place where you can get free legal advice for 20 minutes ONLY below that, English speaking. This might be worth a visit.

http://www.ilo.org/public/english/dialogue/ifpdial/info/termination/countries/switzerland.htm
http://www.treffpunkt-arbeit.ch/arbeitslos/erste_schritte/
http://www.zav.ch/service/rechtsauskunft.html?newLangID=en

Personally though I do believe that Swiss employers do whatever they want regarding termination whatever the law says.

Don't forget when leaving your company you will not have accident health insurance after a month or so (although when you are claiming RAV ins they will only pay basic level SUVA accident ins).

Also RAV do not cover you for sickness money after 1 month so you could be stuffed if you continue to be ill. Remember RAV only pays you if you are actively seeking work and not sick, 10 job applications a month.

You will need to continue with a sickness salary pay insurance to cover you if you are sick again longer than a month at a time. You will personally have to pay for this (follow that up with your company asap as I was told by RAV that premiums greatly increase if you approach an insurance company for this after leaving).

Good Luck
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Old 14.05.2011, 18:20
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Re: Lost my job due to illness

You can be fired during illness but it is invalid however this protection is only granted for a certain period. First year of employment it is 1 month. Also the payment during illness is limited to 3 weeks during first year. If company has insurance after that you get the insured amount - usually 80%.
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Old 14.05.2011, 23:19
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Re: Lost my job due to illness

Art. 336c1

2. Termination at an inopportune juncture
a. By the employer
1 After the probation period has expired, the employer may not terminate the employment relationship:
a.2while the other party is performing Swiss compulsory military or civil defence service or Swiss alternative civilian service or, where such service lasts for more than eleven3 days, during the four weeks preceding or following it;b.while the employee through no fault of his own is partially or entirely prevented from working by illness or accident for up to 30 days in the first year of service, 90 days in the second to fifth years of service and 180 days in the sixth and subsequent years of service;c.during the pregnancy of an employee and the sixteen weeks following birth;d.while the employee is participating with the employer’s consent in an overseas aid project ordered by the competent federal authority. 2 Any notice of termination given during the proscribed periods stipulated in paragraph 1 is void; by contrast, where such notice was given prior to the commencement of a proscribed period but the notice period has not yet expired at that juncture, it is suspended and does not resume until the proscribed period has ended.
3 Where a specific end-point, such as the end of a month or working week, has been set for termination of the employment relationship and such end-point does not coincide with the expiry of the resumed notice period, the latter is extended until the next applicable end-point.


---
There are some things to consider. The thirty day period relates to one case of illness (or the same recurring one) and is not cumulative for all accidents and illnesses that afflict you. E.g. if your sick due to a slipped disk then the 30 days proscription period applies, if you then (still within the termination period) break your leg an additional 30 days proscription period can apply...



As you can see it can all get a bit complicated (especially if you have special contract) and I would strongly advise to talk with the people of the RAV (or contact an employment lawyer - PM me if you need some names) since if the RAV thinks you've waived any rights, they can cut your benefits.
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Old 15.05.2011, 10:14
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Re: Lost my job due to illness

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Art. 336c1

2. Termination at an inopportune juncture
a. By the employer
1 After the probation period has expired, the employer may not terminate the employment relationship:
a.2while the other party is performing Swiss compulsory military or civil defence service or Swiss alternative civilian service or, where such service lasts for more than eleven3 days, during the four weeks preceding or following it;b.while the employee through no fault of his own is partially or entirely prevented from working by illness or accident for up to 30 days in the first year of service, 90 days in the second to fifth years of service and 180 days in the sixth and subsequent years of service;c.during the pregnancy of an employee and the sixteen weeks following birth;d.while the employee is participating with the employer’s consent in an overseas aid project ordered by the competent federal authority. 2 Any notice of termination given during the proscribed periods stipulated in paragraph 1 is void; by contrast, where such notice was given prior to the commencement of a proscribed period but the notice period has not yet expired at that juncture, it is suspended and does not resume until the proscribed period has ended.
3 Where a specific end-point, such as the end of a month or working week, has been set for termination of the employment relationship and such end-point does not coincide with the expiry of the resumed notice period, the latter is extended until the next applicable end-point.


---
There are some things to consider. The thirty day period relates to one case of illness (or the same recurring one) and is not cumulative for all accidents and illnesses that afflict you. E.g. if your sick due to a slipped disk then the 30 days proscription period applies, if you then (still within the termination period) break your leg an additional 30 days proscription period can apply...



As you can see it can all get a bit complicated (especially if you have special contract) and I would strongly advise to talk with the people of the RAV (or contact an employment lawyer - PM me if you need some names) since if the RAV thinks you've waived any rights, they can cut your benefits.
In my case, I was 100% correct in the legal sense. The HR person
and my ex-boss went to the court and lied through their teeth.

In the end, it becomes "he said, she said". The only person that
won in my case were the attorneys.
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Old 15.05.2011, 10:50
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Re: Lost my job due to illness

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don't you see any alternative here such as requiring the taking of holidays or an unpaid leave of absence?
Why would they take that risk on an unknown entity? You may not go back for another 12 months. They are not running a charity here.
The fact they are profitable doesn't mean they should give you more leeway.

They've obviously talked to the quack and decided the risk of having you being unproductive is too great.

It's a shame you find yourself in this position but fully understandable.
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Old 15.05.2011, 13:44
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Re: Lost my job due to illness

thanks everyone for your advice, I will go to RAV, explain my circumstances, and let you know what they say.
In 10 days I will see my doctor, to decide whether any further treatment is necessary for my hernia. I am "almost" cured but it won't quite fully go away. My scaphoid bone is healing and I hope to have full use of my right hand in a couple of months.
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Old 15.05.2011, 13:48
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Re: Lost my job due to illness

My dad had a cervical hernia when he was 45. He was told he would have to finish his life in a wheel-chair. He got better with physio and exercise. He did his exercises religiously every morning without fail- and his hernia never re-occured and he lived (still skiing) to the ripe old age of 96, as fit as a fiddle. So don't give up hope.
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Old 15.05.2011, 13:55
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Re: Lost my job due to illness

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Art. 336c1

2. Termination at an inopportune juncture
a. By the employer
1 After the probation period has expired, the employer may not terminate the employment relationship:
a.2while the other party is performing Swiss compulsory military or civil defence service or Swiss alternative civilian service or, where such service lasts for more than eleven3 days, during the four weeks preceding or following it;b.while the employee through no fault of his own is partially or entirely prevented from working by illness or accident for up to 30 days in the first year of service, 90 days in the second to fifth years of service and 180 days in the sixth and subsequent years of service;c.during the pregnancy of an employee and the sixteen weeks following birth;d.while the employee is participating with the employer’s consent in an overseas aid project ordered by the competent federal authority. 2 Any notice of termination given during the proscribed periods stipulated in paragraph 1 is void; by contrast, where such notice was given prior to the commencement of a proscribed period but the notice period has not yet expired at that juncture, it is suspended and does not resume until the proscribed period has ended.
3 Where a specific end-point, such as the end of a month or working week, has been set for termination of the employment relationship and such end-point does not coincide with the expiry of the resumed notice period, the latter is extended until the next applicable end-point.


---
There are some things to consider. The thirty day period relates to one case of illness (or the same recurring one) and is not cumulative for all accidents and illnesses that afflict you. E.g. if your sick due to a slipped disk then the 30 days proscription period applies, if you then (still within the termination period) break your leg an additional 30 days proscription period can apply...



As you can see it can all get a bit complicated (especially if you have special contract) and I would strongly advise to talk with the people of the RAV (or contact an employment lawyer - PM me if you need some names) since if the RAV thinks you've waived any rights, they can cut your benefits.
well, I'm in the first year of my contract and have missed more than 30 days. i had no choice though as the hernia put pressure on a nerve in my left arm and in the worst case could have caused nerve damage and even loss of the use of the arm. that's a risk I just couldn't take. as long as my ex-employer gives me a reference that doesn't make me look bad, i'm happy. my previous employer gave me an excellent reference after 3 years.
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