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  #21  
Old 30.09.2011, 10:13
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Re: Employer withholding severance pay

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Just hoped the Embassy may point me in the right direction. I was terminated with immediate effect. 22nd July.It said ""i have decided to terminate our working relationship as from today 22nd July 2011. Your salary will be paid until end Sept 2011
Thats only 2 months paid notice not 3.
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Old 30.09.2011, 10:14
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Re: Employer withholding severance pay

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You say your contract is very basic and "All it contains is details of what I get paid" but you also say "as this would cover the 3 months notice as it says in my contract". Which is correct ?

How long have you worked in that role? If there is no statement about notice period in the contract, you are entitled to the statutory notice period which I believe is 1 month in the first 2 years of employment, 2 months from the 3rd year, 3 months from the 10th year..something like that. So unless you have a clause extending this, or unless you were there for 10 years you would not normally have a 3 month notice.

It gives details of monthly salary and 2 months notice. But he said that as he fired me mid month he would have to pay the rest of July and then Aug and Sept too. I had been there for 4 years
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Old 30.09.2011, 10:15
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Re: Employer withholding severance pay

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It gives details of monthly salary and 2 months notice. But he said that as he fired me mid month he would have to pay the rest of July and then Aug and Sept too. I had been there for 4 years
He is paying you what is required by law, nothing more.
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Old 30.09.2011, 10:19
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Re: Employer withholding severance pay

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He is paying you what is required by law, nothing more.
Yes I was happy with the salary being paid at the end of July, Aug and Spet. It's just that now not getting the September payment I want to see if he can legally do it.
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Old 30.09.2011, 10:22
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Re: Employer withholding severance pay

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Yes I was happy with the salary being paid at the end of July, Aug and Spet. It's just that now not getting the September payment I want to see if he can legally do it.
If your business is 'competition' to your 'employer' there could be an issue.
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Old 30.09.2011, 10:24
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Re: Employer withholding severance pay

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If your business is 'competition' to your 'employer' there could be an issue.

I suppose it technically is. Ah well. It seems I may not be entitled to anything but as I say I am going to check with an employment officer to make sure first. Then I can post here what they said for others to learn from any mistakes I have made.
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Old 30.09.2011, 10:25
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Re: Employer withholding severance pay

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If your business is 'competition' to your 'employer' there could be an issue.
Only if there is a specific clause in his employment contract, surely?
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  #28  
Old 30.09.2011, 10:27
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Re: Employer withholding severance pay

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Only if there is a specific clause in his employment contract, surely?
I suspect the law will protect the employer on this one, the OP is still technically 'employed'. It's probably grounds for instant dismissal without any notice period being paid.
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  #29  
Old 30.09.2011, 10:30
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Re: Employer withholding severance pay

There are some people jumping on irrelevant facts here.

The OP worked until some point in July and was terminated immediately (end of working relationship). He/she was promised salary at end of July (i.e. for days worked in July and a few days after being fired), August and September.

I don't know what the legal minimum is in Switzerland after working for a company for 4 years. If it's three months, then the OP needs even more money - until mid october.

However, if the OP signed something, then end September it remains.

The only question is whether you can get a new job or start a business. And that depends on only one thing ... are you legally still employed until end of September (but on "gardening leave" or sent home with no work until end September) or were you terminated immediately mid July but the company is short of funds so couldn't pay you your redundancy in one go and is spreading it out?

If it was me I'd (1) talk to my ex boss to say the business is just something I want to try, currently it has no customers and/or makes no money, and then (2) go to the RAV, show what you signed, and say the company owes you salary from September.

I assume we're using "fired" in the "I'm not English, so will just copy what loads of Europeans say when speaking English" sense. I.e. you were made redundant. If you were really fired, then you were lucky to get anything.
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  #30  
Old 30.09.2011, 10:31
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Re: Employer withholding severance pay

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I suspect the law will protect the employer on this one, the OP is still technically 'employed'. It's probably grounds for instant dismissal without any notice period being paid.
not sure here as there may be no evidence of any business being done (assuming that's what no payment to cbb means). Swiss Code of Obligations does not absolutely cover non-competitive clauses....
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  #31  
Old 30.09.2011, 10:32
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Re: Employer withholding severance pay

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Yes I was happy with the salary being paid at the end of July, Aug and Spet. It's just that now not getting the September payment I want to see if he can legally do it.
Well it seems from what you told us that you were fired with immediate effect without there being a reason for doing so. The employer therefore has to pay you as if your contract had been terminated with statutory notice (2 months). Any income from any other employment is deducted from these sums, Art. 337 Code of Obligations. According to the Swiss federal court, if you're put on gardening leave but have not signed a non-compete, that means that the difference between what you earn in your new job and what you are owed by your former employer will still have to be paid by the former employer (unless of course you earn the same or more in your new job), BGE 118 II 139.

Edited to add that termination of work contracts outside of probation periods is always to month end as per Swiss law, unless otherwise agreed.

Last edited by tom tulpe; 30.09.2011 at 10:34. Reason: see above
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  #32  
Old 30.09.2011, 10:33
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Re: Employer withholding severance pay

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not sure here as there may be no evidence of any business being done (assuming that's what no payment to cbb means). Swiss Code of Obligations does not absolutely cover non-competitive clauses....
So your saying whilst still employed you can work for the competition as well?
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  #33  
Old 30.09.2011, 10:36
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Re: Employer withholding severance pay

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So your saying whilst still employed you can work for the competition as well?
For free, maybe - as long as it's not forbidden in a contract, not paid and your employer knows about it and agrees to it.

cbb was terminated effective immediate and the employer is complying with their obligations. Tom's posted that bit.
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Old 30.09.2011, 10:40
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Re: Employer withholding severance pay

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For free, maybe - as long as it's not forbidden in a contract, not paid and your employer knows about it and agrees to it.

cbb was terminated effective immediate and the employer is complying with their obligations. Tom's posted that bit.

' not paid and your employer knows about it and agrees to it' could be the issue me thinks!

Is the termination really difference from notice being given? I am not sure what language this is happening in.
The obligations for payment of notice would seem identical.
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  #35  
Old 30.09.2011, 10:41
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Re: Employer withholding severance pay

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the employer is complying with their obligations. Tom's posted that bit.
Not sure they are actually - it appears that they still have to pay out the difference between what OP actually earns and what the employer owes OP, until the end of what would have been OP's notice period had the contract not been terminated "with immediate effect".
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Old 30.09.2011, 10:42
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Re: Employer withholding severance pay

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I assume we're using "fired" in the "I'm not English, so will just copy what loads of Europeans say when speaking English" sense. I.e. you were made redundant. If you were really fired, then you were lucky to get anything.
Adrian, I'm actually interested in that point there (I do like to improve my English skills!).

What is the exact meaning of fired and redundant? In my mother tongue we use redundant to indicate superfluous, which doesn't mean necessarily that a contract with a person has been terminated (might just be in stand by waiting a new better fitted position).

Thank you for sharing the English language goodness ^^
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  #37  
Old 30.09.2011, 10:43
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Re: Employer withholding severance pay

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Not sure they are actually - it appears that they still have to pay out the difference between what OP actually earns and what the employer owes OP, until the end of what would have been OP's notice period had the contract not been terminated "with immediate effect".
I believe this is what they're trying to find out.
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  #38  
Old 30.09.2011, 10:45
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Re: Employer withholding severance pay

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Adrian, I'm actually interested in that point there (I do like to improve my English skills!).

What is the exact meaning of fired and redundant? In my mother tongue we use redundant to indicate superfluous, which doesn't mean necessarily that a contract with a person has been terminated (might just be in stand by waiting a new better fitted position).

Thank you for sharing the English language goodness ^^
In CH it makes no difference, the contract is just ended. Either side can do for any reason they like by giving notice.
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  #39  
Old 30.09.2011, 10:54
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Re: Employer withholding severance pay

When I left employment a few years ago, my termination agreement stated that I was being given notice, according to original employment contract, would be paid monthly my normal salary during that time. However, if I found work before the notice period end, I would be paid the remainder as a lump sum.

Another person I know who was terminated from the same company had written into their agreement, that if they found work before the notice period ended, then they would forfeit the remainder.

So, first port of call. Read your termination agreement. Second port of call, read your original employment contract. If it's still not clear, invest a 100CHF in talking to a lawyer. If the lawyer says the boss is wrong and you are owed the money, start debt collection proceedings.
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Old 30.09.2011, 10:57
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Re: Employer withholding severance pay

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So, first port of call. Read your termination agreement. Second port of call, read your original employment contract. If it's still not clear, invest a 100CHF in talking to a lawyer. If the lawyer says the boss is wrong and you are owed the money, start debt collection proceedings.
Talk to the ex-boss first, of course
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