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Old 02.03.2012, 23:28
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How to pursue unfair departure from company

Does anyone have any experience of pursuing your previous employer here in Switzerland (Vaud) What would be the equivalent to Citizens Advice (UK) and do good employment lawyers exist here ? From what i can see employment law here is so relaxed and nobody really cares about it, certainly a million miles away from USA/UK laws and practices.

PS: I'd like to precise that this does not refer to an unfair dismissal as I chose to leave however it's the conditions that have been forced on to me that I'm having a problem with.

Any advice appreciated
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Old 03.03.2012, 00:54
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Re: How to pursue unfair departure from company

It may not be unfair. It is very easy to be dismissed legally here, maybe you can tell us a lot more?
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Old 03.03.2012, 01:01
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Re: How to pursue unfair departure from company

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It may not be unfair. It is very easy to be dismissed legally here, maybe you can tell us a lot more?
As mentioned earlier, it's not a dismissal as I handed my notice in some months back. Where I have a problem are the conditions that they have forced on me and this is what I need to get advice on.
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Old 03.03.2012, 01:05
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Re: How to pursue unfair departure from company

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As mentioned earlier, it's not a dismissal as I handed my notice in some months back. Where I have a problem are the conditions that they have forced on me and this is what I need to get advice on.
If they did not make you work more than the max no of hours allowed & paid your salary on time, you won't have much to go on. As I was advised once by a lawyer, if you don't like it leave & get another job!
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Old 03.03.2012, 02:30
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Re: How to pursue unfair departure from company

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As mentioned earlier, it's not a dismissal as I handed my notice in some months back. Where I have a problem are the conditions that they have forced on me and this is what I need to get advice on.
Sounds like you got fed up with your job, resigned, and then some time later have started to feel that you should have fought your corner a bit better at the time, and are now looking for redress.

I hope that doesn't sound unsympathetic because it isn't. Just recently, for no obvious reason I've been thinking a lot about the last job I had in the UK, from which I was made redundant. The more I think about it, the more convinced I am that I should have fought the redundancy i.e. sued for constructive dismissal. I had a very aggressive manager who had no technical understanding of my job, and was constantly bringing forward deadlines etc -- sheesh, I won't bore you with the details.

But anyway, I have to accept that that is all now past history. If I had a grievance I should have challenged them at the time. Too late now. I accepted the redundancy package, signed on the dotted line, and went on my Swiss way.

In your case, you have even less chance of reviving the corpse of your departure. One -- because you resigned. And two -- we are in Switzerland. Different laws, different work culture.

Unless there is something truly outrageous and illegal about the situation, your best bet is to learn the lesson, and move on.
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Old 03.03.2012, 08:30
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Re: How to pursue unfair departure from company

There is no such thing as "constructive dismissal" or "redundancy payments" under Swiss employment law. If you give notice, that's typically that, unless you (!) can prove (!) that you were directly forced (!) to resign by your employer. That is a much more difficult test than "constructive dismissal". The "sanction" usually is the payment of wages that you would have received had your employer dismissed you instead of forcing you to resign - not the six-figure payouts you hear about in US and UK media.

The reason for that is of course that underhand tactics are unnecessary if you want someone out. Anyone can be dismissed at any time (unless pregnant or a new mother) by giving notice as agreed in the contract.
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Old 03.03.2012, 08:54
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Re: How to pursue unfair departure from company

Yes i confirm there is no such things as constructive dismissal in switzerland, contrary to the uk for example.

I mean this is switzerland: very competitive salaries (probably what attracted you here in the first place) but very limited employment rights and high prices.

The good point is that unemployment is lower than in any EU country (ther are 27 of them!) and thus you should more easy find another job (although this is as easy as in the past, in part because switzerland attracts many people from Europe, not knowing about the high prices and limited rights).

Anyway good luck in your search

You may consider legal insurance, i have it and use it all the time here
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Old 03.03.2012, 09:10
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Re: How to pursue unfair departure from company

We really don't know enough about the OP's situation to make any kind of judgement - and quite rightly he gives few details on a public forum.

To refer to the OP's original question, I'm not sure whether the CAB concept exists here however a quick google threw up this website http://www.anwalt-arbeitsrecht.ch/ which lists lawyers with employment rights expertise.

My own lawyer - Gabrielle Grether - http://www.gmacg.ch has expertise with expat employment matters.

HTH
Nick
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Old 03.03.2012, 09:20
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Re: How to pursue unfair departure from company

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We really don't know enough about the OP's situation to make any kind of judgement - and quite rightly he gives few details on a public forum.

To refer to the OP's original question, I'm not sure whether the CAB concept exists here however a quick google threw up this website http://www.anwalt-arbeitsrecht.ch/ which lists lawyers with employment rights expertise.

My own lawyer - Gabrielle Grether - http://www.gmacg.ch has expertise with expat employment matters.

HTH
Nick

Thanks Nick.

You read the post and understood my question, very well indeed.

The details are much appreciated
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Old 03.03.2012, 11:26
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Re: How to pursue unfair departure from company

It is extremely rare in Switzerland, but the legal route of action is to argue that the employer is not honoring the terms of your original contract in terms of your departure.

The typical route is to take any case to the Prud'Hommes and for that you will need a lawyer. You can go to any of the Permanence juridiques (the OAV has one)

You can also do this if you feel your work certificate was unfair, or written out of revenge because you got a new job or something. I'm not assuming anything about your case, but just following my thoughts to the end here- it is rare in Switzerland but people can get redundancy or severance if you were given a forced demotion or a cut in pay, and resigned due to that, which sometimes this can follow under "mobbing" or "unfair dismissal." I know of a couple people in Geneva banks recently who have been given random demotions in the hope they would quit.

I hate this economy. All the best to you.

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Old 03.03.2012, 11:57
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Re: How to pursue unfair departure from company

Whatever happens you can be pretty sure that you won't get any of those massive payouts you read about in the UK newspapers.
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Old 03.03.2012, 13:21
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Re: How to pursue unfair departure from company

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It is extremely rare in Switzerland, but the legal route of action is to argue that the employer is not honoring the terms of your original contract in terms of your departure.

The typical route is to take any case to the Prud'Hommes and for that you will need a lawyer. You can go to any of the Permanence juridiques (the OAV has one)

You can also do this if you feel your work certificate was unfair, or written out of revenge because you got a new job or something. I'm not assuming anything about your case, but just following my thoughts to the end here- it is rare in Switzerland but people can get redundancy or severance if you were given a forced demotion or a cut in pay, and resigned due to that, which sometimes this can follow under "mobbing" or "unfair dismissal." I know of a couple people in Geneva banks recently who have been given random demotions in the hope they would quit.

I hate this economy. All the best to you.
Thanks Nicole, that's very useful information.
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Old 03.03.2012, 13:22
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Re: How to pursue unfair departure from company

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Whatever happens you can be pretty sure that you won't get any of those massive payouts you read about in the UK newspapers.
Just looking for what I believe is fair and within contract spec
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Old 03.03.2012, 13:57
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Re: How to pursue unfair departure from company

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I it is rare in Switzerland but people can get redundancy or severance if you were given a forced demotion or a cut in pay, and resigned due to that,
Huh? No, you can't. A cut in pay implies a new contract - if you do not sign it then you are in effect resigning per the conditions of your previous contract.

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which sometimes this can follow under "mobbing" or "unfair dismissal." I know of a couple people in Geneva banks recently who have been given random demotions in the hope they would quit.

I hate this economy. All the best to you.
Ah - no that's not how it works. If they want to fire you, they'll just fire you as that is a certain cost-control measure, as opposed to a random "let's wait till they go". Considering both the employer and the employee can terminate the contract under the same conditions and with no penalties, there is really no point in "demoting someone to force them out" - because you have no idea how long they'll stick around for.
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Old 03.03.2012, 14:07
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Re: How to pursue unfair departure from company

But as the others have hinted, the legal route may be an expensive one - sometimes it is better to swallow your principles and move on.

Lawyers' hourly fees are not cheap.

Cheers,
Nick

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Thanks Nick.

You read the post and understood my question, very well indeed.

The details are much appreciated
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Old 03.03.2012, 14:14
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Re: How to pursue unfair departure from company

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Any advice appreciated
Culturally speaking, the most important thing is to have a very very very positive record/recommendation from this employer. It doesn't cost them anything and if they wanted you out of the place, giving a good reference is an excellent way to achieve just that.
Your goal should be to get this reference, build up a believable story simple enough to stick to it in job interviews, stay as friendly as possible with your ex-employer because the new one probably will phone them, and use all your energy finding a new job.
Switzerland is the wrong country to fight an employer. Play the game.
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Old 03.03.2012, 18:58
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Re: How to pursue unfair departure from company

Just for clarity, I have a new job ! I will work for my own SÓrl that i've set up here, hence why the previous employer isn't happy and chooses to throw his weight around and with what seems to be relaxed Suisse employment laws it's not clear to see a way forward even though I know that if I were in the UK I'd be on solid ground. The legal costs are relevant but then they are in investment in pursuing lost earnings so a ratio of say 10% costs would be worth it in my case.

I will follow up on the leads that people have kindly passed on.
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Old 03.03.2012, 19:11
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Re: How to pursue unfair departure from company

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Huh? No, you can't. A cut in pay implies a new contract - if you do not sign it then you are in effect resigning per the conditions of your previous contract.



Ah - no that's not how it works. If they want to fire you, they'll just fire you as that is a certain cost-control measure, as opposed to a random "let's wait till they go". Considering both the employer and the employee can terminate the contract under the same conditions and with no penalties, there is really no point in "demoting someone to force them out" - because you have no idea how long they'll stick around for.
You do not resign your previous contract- they are in effect ending it by giving you a new one. Thus where you can contest the demotion and thus where you can prove the pay cut is unfair or unevenly applied or politically motivated.

Switzerland is an at-will employer country and employees are at-will employees but the loopholes do exist within the framework of employment law as it relates to workplace conditions and contracts. Just like you have to honor the terms of your contract, the employer also has to honor his terms- and where workers have the little rights we have is in proving that the employer didn't end the contract correctly.

As I said, it is rare, but it has happened in Switzerland and has a jurisprudential precedent and I have personally seen it happen to three people. I wouldn't just talk cr*p for fun.
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Old 04.03.2012, 00:37
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Re: How to pursue unfair departure from company

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You do not resign your previous contract- they are in effect ending it by giving you a new one.
Whiiiich is exactly what I said - you have a choice between signing a new contract or resigning/ being dismissed under the conditions of your old contract. The mere offering of the new contract does not automatically cancel the old one.

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Thus where you can contest the demotion and thus where you can prove the pay cut is unfair or unevenly applied or politically motivated.
Define fair. Is there a "fairness standard" in the CO? I believe not.

You'll be hard pressed to claim the pay cut has to be evenly applied. THe employer is under no obligation to pay everyone or indeed cut everyone on an equal basis unless there is a collective convention.


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As I said, it is rare, but it has happened in Switzerland and has a jurisprudential precedent and I have personally seen it happen to three people. I wouldn't just talk cr*p for fun.
I'd like to see that jurisprudential precedent... I'm not saying anyone talks crap, but i believe important details are being lost in translation.
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Old 04.03.2012, 08:43
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Re: How to pursue unfair departure from company

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The legal costs are relevant but then they are in investment in pursuing lost earnings so a ratio of say 10% costs would be worth it in my case.
Only if you think you have a better than 10% chance of winning

And don't forget to factor in potential costs of court hearing into this number, not just legal fees. That can get pricey
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