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Old 31.10.2011, 22:14
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Re: Validity of non competition clause in Switzerland

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Hi ,

I work as a consultant for a small swiss company, in international transfer I am only paid when we get contracts, so I have no fixed salary, and when I am sick I am not paid. Now the company is in a difficult position with the announced retirement of the management, loss of a major client and drastic decrease in work for more than a year.
I have been approached by the competition to work for them in a total different position.I said yes and did not htink it would be an issue considering the situation, until I told my actual boss who now threatens me with the non competition clause that prevents me from working 1 year for the competition after I resign, otherwise it's 10 000CHF. I feel the whole contract is only in favour of the employer.
Can they do that as I have less and less work for me + my boss plans to retire so we have no idea where we are going?
Is this enforcable?
Does anybody have an experience with that kind of non competition clause?
thanks for your answers

Sam
Why not try the good old fashioned US way: "don't like it? sue me!"

Better yet, leave and go below the radar screen a bit.

In all countries I've worked such clauses were invalid 99% of the time because courts either considered them much too restrictive or as something you had to sign up for under unreasonable pressure just to ensure employment. Even if they'd sue, you can always tweek you new job spec to look less relevant for the non-compete.
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  #22  
Old 31.10.2011, 22:17
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Re: Validity of non competition clause in Switzerland

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These clauses are perfectly legal and usually enforceable in Switzerland. You signed it. Check the wording with a lawyer, you may be able to get out, but the norm is to agree an exit and gardening leave with your current employer.
When an employer adds it to your draft contract, it's also a great point to "abuse" in negotiation: you want me to commit to your company like this? fine... how about some reciprocity... can't expect a "non-interview"claus from you so how about xxx options/shares?

There's potential benefits for employees as well when companies go down this handcuffs route.
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  #23  
Old 31.10.2011, 22:21
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Re: Validity of non competition clause in Switzerland

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actually, football clubs do include this in their contracts (or did) - IIRC, the landmark case was brought to the European Court of Human Rights by a UK footballer.
Belgium, wasn't it?
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Old 31.10.2011, 22:23
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Re: Validity of non competition clause in Switzerland

Give someone a good grope at coffee break and you will be fired by the afternoon. If there's nobody worth groping, just walk about in the nude, it's not illegal here. Then you won't have to worry about the clause any longer.
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  #25  
Old 02.11.2011, 14:12
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Re: Validity of non competition clause in Switzerland

My new employer assured me they will defend me in case of a trial as they are sure the clauses in my contract are much more in favour of the employer than the employee. So i'm not worried anymore.
For all of you who experience that kind of unpleasant situation, remember that it's mainly emotional blackmail with no real defense behind !
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Old 02.11.2011, 14:22
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Re: Validity of non competition clause in Switzerland

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Give someone a good grope at coffee break and you will be fired by the afternoon. If there's nobody worth groping, just walk about in the nude, it's not illegal here. Then you won't have to worry about the clause any longer.
grope your boss for double points no point in making some innocent third party suffer.

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My new employer assured me they will defend me in case of a trial as they are sure the clauses in my contract are much more in favour of the employer than the employee. So i'm not worried anymore.
For all of you who experience that kind of unpleasant situation, remember that it's mainly emotional blackmail with no real defense behind !
glad you got it sorted out! getting the new employer to cover is a good plan
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  #27  
Old 02.11.2011, 15:17
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Re: Validity of non competition clause in Switzerland

At one of my old firms (IT Consultancy in the UK), the clause they wrote was that we could not work within 25 miles of a client office for 5 years if we resigned or in the same industry OR in the same industry as one of their clients. That included any new clients they took on after we resigned for that whole 5 year period. i.e. If I left the company, worked 100 miles away from one of their clients and 2 years later they got a client within that boundry, I would have to quit and move.

Several of their clients were highstreet banks, a national chain of surveyors, mobile phone stores etc etc,

So basically, I could do any job which wasn't IT or any other the above, but I couldn't do it anywhere near a population centre.

I think that all I would have been allowed to do was work on an oil rig, but I wouldn't have been allowed the helicopter home as one of their clients had an office near the refinery.

I just laughed. In UK law there was no legal way that they could have enforced that.
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Old 02.11.2011, 17:34
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Re: Validity of non competition clause in Switzerland

These clauses are legal in Switzerland as long as the conditions in Art. 340 ss. Law of Obligations are met. Also, reading the OP I'm not quite sure whether s/he is technically an "employee".
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Old 24.11.2011, 13:08
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Re: Validity of non competition clause in Switzerland

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These clauses are legal in Switzerland as long as the conditions in Art. 340 ss. Law of Obligations are met. Also, reading the OP I'm not quite sure whether s/he is technically an "employee".
Interesting. Had dinner with my ex-boss a couple of weeks ago. Ex-boss as she was let go (budget), but she'd also had to supervise letting go several people in the preceding years.

Anyway she said that the clauses were worthless, for the simple reason that the unemployment people (RAV?) would refuse to accept that and so tell the laying off company to take a hike. If another company wants to hire you, then great - the other company did not want to keep you, and the Swiss state (whatever part/level pays unemployment) would not give you cash if you could be earning it yourself!

I'll take a look at Art. 340 ss. Law of Obligations if/when necessary (so probably beginning of January 2012, might help with the hangover).

For the OP, what happened in the end?
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