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Old 27.05.2008, 17:23
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Notice period/contract

I have been working over here for 15 months as a private tutor for a family.

I have been trying to get a contract sorted for most of that time, just to set out my terms and conditions.

Finally, in April I received and contract from their lawyer that everyone agrees with, however, for logistical reasons it remains unsigned by my employer.

The contract states that I have a 3 month notice period.

I now wish to resign this position, and intend to give 3 months notice from the end of May (as stated in the contract).

However, as a teacher, I do not teach during the summer, although I am still employed, and I am VERY concerned that my employer will not pay me past the end of June. Despite the notice period.

Please can anyone advise me on this?

Does my employer have to pay me for my notice period even though the contract is unsigned? (That aspect of the contract was agreed before xmas).

Thanks in advance!

Last edited by stooo; 27.05.2008 at 17:48. Reason: more appropriate title
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Old 27.05.2008, 19:51
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Re: Notice period/contract

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Finally, in April I received and contract from their lawyer that everyone agrees with, however, for logistical reasons it remains unsigned by my employer.
For logistical reasons? There are banks that like to believe that they lost 20 billion francs because of logistic problems but all it needs to sign a contract are two letters with priority stamps.

I can't help you very much but the salary answer probably depends on the factor if you were paid by the hour, or by month.

A heads-up, the three months notice period is above the minimal two months that the law grants those who are employed for 2-9 years. If your employer breaks his word, you'd have problems proving this in a court.
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Old 28.05.2008, 14:10
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Re: Notice period/contract

Thanks for getting back to me.

The logistical reasons are simply that my boss hasn't been around to do it.

Do you know of any good employment lawyers over here?
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Old 28.05.2008, 15:18
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Re: Notice period/contract

I think it would be best if you spoke to your employer about your situation before you involve lawyers. Lawyers can be expensive, and involving a lawyer before you even talk to your employer might set things on the wrong foot.

As Nathu has pointed out, the Swiss law (i.e. the Code of Obligations) provides a 2 month notice period if you have been employed for 2 to 9 years. However, this notice period can be changed by agreement. In the absence of an agreement, the provisions in the Swiss law applies.

If there have been numerous discussions about the terms of your contract in the past, you may have some good arguments to persuade your employer to accept a 3 month notice period.

However, pre-contractual discussions are (usually) not binding, and parties usually have the intention to be bound only once the terms and conditions are agreed upon in writing. The fact that you and your employer have been discussing the terms of your contract for the last 15 months lends support to this point (otherwise, why have anything in writing?).

The biggest hurdle for you is the simple fact that your employer has not signed the contract, which means he is not bound by the terms of the contract. It will be up to you to provide strong reasons as to why the unsigned contract should be enforced.

You may want to consider whether your employer has performed any act under the contract which he was not required to do before the contract came into existence.
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Old 28.05.2008, 15:52
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Re: Notice period/contract

Thanks... very helpful.

The contract contains details of changes to my salary, which changed half way through this year from GBP to CHF. Would this demonstrate agreement?

I have been told (by my employers lawyer and others), that a written contract is not necessary in Switzerland, and that terms and conditions can be agreed verbally or implicitly. Is this not the case?

Thanks again...
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Old 28.05.2008, 16:54
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Re: Notice period/contract

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Thanks... very helpful.

The contract contains details of changes to my salary, which changed half way through this year from GBP to CHF. Would this demonstrate agreement?

I have been told (by my employers lawyer and others), that a written contract is not necessary in Switzerland, and that terms and conditions can be agreed verbally or implicitly. Is this not the case?

Thanks again...
I'm not sure what you mean by this because we are not halfway through the year yet ...

What date does the contract specify as the date on which your employer must pay you in CHF?

Is your employer already paying you in CHF? If so, when did he start doing so? Before or after you signed the contract?

It is not necessary to have an employment contract in Switzerland, and nor is there any special format stipulated for an employment contract. Hence, an employment contract can be made orally (but this is not desirable).

However, if you are working for more than one month, or you are doing work on an unlimited duration of time, your employer is required to set out in writing details such as the name of the parties, date of the beginning of the employment relationship, your job description, your salary conditions and weekly number of work hours.

It is possible that you and your employer may have had an oral agreement regarding the terms of your employment, and putting these terms into writing was a mere formality. This would especially be so if the contract reflects your current employment conditions (but you have indicated that it does not).

Conversely, it may have been the intention of both parties to not be bound by anything until the terms had been agreed upon in writing.

Which basket you fall into will depend on the circumstances of your case.
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Old 28.05.2008, 17:07
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Re: Notice period/contract

Sorry... I didn't explain fully... I am a teacher, and so my year runs from September to September.

They are already paying me in CHF. This started in Feb, and is detailed in the contract that their lawyer sent me at that time, which also stated that I have a 3 month notice period.

The fact that I am a teacher, and therefore can not easily find work over the summer, or between school terms, is the reason that I requested the 3 month notice period back in November.

I only signed the contract in April, as there were some typos, and very minor errors that needed to be corrected, none of which relate to this matter. I should have just ignored them!

The contract does, very accurately, reflect my current employment conditions.

Thank you so much for your comments. I am due to have a meeting tomorrow, at which I intend to give my formal notice, although my boss already knows that I wish to discuss my future, and has assumed that I will be resigning. The letter I will give to her gives a leaving date of 31st August (3 months from the end of May, as required in the contract). As a teacher I will not be able to find any suitable work over the summer.
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Old 28.05.2008, 17:18
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Re: Notice period/contract

If the contract reflects your current employment conditions, then you have good grounds to argue that putting things into writing was just a mere formality. This is especially if the (unsigned) contract prompted your employer to start paying you in CHF, which gives an indication of at least a verbal agreement.

Hopefully your employer is a reasonable person and will acknowledge the 3 month notice period. Unless the issue of the unsigned contract is a very obvious one, I would suggest that you don't even raise it; just give 3 months notice and wait for her to make any comment about the unsigned contract. Only then should you start discussing verbal agreements, etc.

Good luck!
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Old 28.05.2008, 17:34
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Re: Notice period/contract

Thank you.

'Reasonable' isn't the first word that springs to mind to describe my employer, and I've heard that she has no intention of paying me past the end of June.

Fingers crossed she has her happy, generous head on tomorrow!
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Old 04.06.2008, 18:45
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Re: Notice period/contract

Ok...

I handed in my 3 months notice last Friday, and had no response until today. When my bosses lawyer called me.

He started by saying that he had my letter, and that everything was in order. He agreed that 3 months was the correct notice to give, even though the contract was not signed, as it still represented the agreement that we have.

Then he said, however..... as the family I work for go back to the US during the summer, and therefore I am not able to teach, they do not have to pay me (as I am not actually working). They would, however, have paid me if I hadn't resigned, so this seems strange. I have stated that I will continue to plan lessons etc during the summer, to fulfil this requirement, however he just called me back and said that I HAVE to do this in Switzerland, and as soon as I leave my notice will be terminated.

Also, my contract states that I started in April 2007, and that I "shall be entitled to 4 weeks paid vacation per calendar year." I have not asked for any vacation time at all since I started, however, he is now saying that I only get 5 days because he is only calculating from this year, starting April 2008. Does this seem right?

Thanks in advance...
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Old 04.06.2008, 19:41
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Re: Notice period/contract

A written contract is not mandatory. Oral contracts are equally valid. The employer prepared the written contract. Hence, it substantiates the prior oral agreement. Swiss employment laws apply unless explicitly agreed that they do not.

Did your employer pay social security contributions? Employer is legally obliged to do so. Failure to do so contravenes the law.

Did you monthly get a salary statement? It must show social security deductions and contributions, pension-plan, etc. Short-term employees are entitled to monthly holiday payments in lieu of regular holidays.

You may be entitled to unemployment benefits. The pertinent office (RAV) would also assist you in recovering dues from former employer. The RAV is motivated to do that and thus diminish the unemployment benefits.
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Old 05.06.2008, 12:54
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Re: Notice period/contract

Dear Stooo

You probably will not get around contacting an employment lawyer, since your situation depends largely on the contract entered into between you and your employer.

The fact that you do not have a "signed" contract is not that much of a difficulty, since both parties appear to have lived by the written agreement.

Several points:

If you terminate your contract and your employer does not require you to come to work ("freigestellt"), then you are still entitled to receive your salary. However, if you happen to find work in the meantime, then the money you earn at the new place can be deducted from the money that your former employer has to pay you. However, you have already said that during summer you cannot find any new work, so this should not be an issue.

The statute of limitation for holiday benefits generally is 5 years. Therefore, even if you did not take your holidays last year, you are still entitled to take your holidays in the following year. (Unless your contract says something different). Your employer might ask you to take your remaining holidays during the notice period (this is permissible to a degree).
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Old 05.06.2009, 15:20
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Re: Notice period/contract

Dear All,

I wonder if someone can advice me what can happen if I resign a job that requires a certain amount of notice period and I can not do all the period but only part of it cause new company would like that I begin "as soon as possible".

I don't know how this things are managed in Switzerland and if I could have "bad" problems.

thank you all for advices

Marco
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Old 05.06.2009, 15:33
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Re: Notice period/contract

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Dear All,

I wonder if someone can advice me what can happen if I resign a job that requires a certain amount of notice period and I can not do all the period but only part of it cause new company would like that I begin "as soon as possible".

I don't know how this things are managed in Switzerland and if I could have "bad" problems.

thank you all for advices

Marco
Is there a section in your current employment contract which deals with notice periods? Usually, you are obligated to work through the stipulated notice period, unless you and your current employer can come to an agreement otherwise. If you can't reach an agreement to shorten the notice period, a penalty may apply. Otherwise, it is unlikely that your current employer would force you to work through the full notice period.

In any event, trying to cut short your notice period is not the nicest thing you can do because the notice period serves as a reasonable time for your current employer to find a replacement for you. In my last job, I was asked to work for an additional 6 months after resigning because they couldn't find a replacement for me. Switzerland is a small country and you don't want to burn your bridges.
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Old 05.06.2009, 16:02
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Re: Notice period/contract

thank you very much cremebrulee
fact is that I have just finished (3 days) probation period in this company and, unfortunately, just yestarday a company where I did some interviews 4 months ago (really the work that I desire to do) called me... 4 months ago everything was blocked by economical crisis, instead now un-blocked and... they need me if I want and they need me as soon as possible, this means 1st August... instead my notice period here is until 31 Sept (in probation was 2 weeks).
Telling the truth I am not yet really "productive" in this position, I have done training and I need most of time help from my supervisor.
But on the other hand it seems that he is very "rigid" and also maybe not a good day to ask him an agreement.
I am also ready to work for free with no pay from today till end of July.... no problem... but I can not miss that opportunity.

Does someone could give a wise advice ?

Marco
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Old 05.06.2009, 16:47
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Re: Notice period/contract

If you don't respect the notice period this is a breach of contract and the old employer could go to court and sue for compensation. How much money is the prospective employer willing to thow at the problem?

Sounds drastic but sometimes there's potential for an amicable solution. For example a friend of mine made it quite clear to his employer that he wants to leave immediately. He left the company honoring the notice period but begun work for the new one immediately. The old company contracted him to the new employer and pocketed the salary difference for a couple months.

Admittedly a solution that probably is rather unconventional in his salary bracket...
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Old 17.06.2009, 14:11
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Re: Notice period/contract

Echoing Nathu's comments, the Swiss Code of Obligation states that if an employee leaves his post without observing the notice period, his employer is entitled to:
(a) an amount equivalent to a quarter of the monthly salary as compensation (judge may reduce this); and
(b) any further damages resulting from the breach of the employment contract (if proven).

In other words, if your employer incurs high costs in finding a replacement for you, he could hold you liable. In the end it depends on how quick and cheap a replacement can be found for you.
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Old 24.06.2009, 22:17
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Re: Notice period/contract

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Echoing Nathu's comments, the Swiss Code of Obligation states that if an employee leaves his post without observing the notice period, his employer is entitled to:
(a) an amount equivalent to a quarter of the monthly salary as compensation (judge may reduce this); and
Wow, this is interesting, is that really so? You do not have employment at will?
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Old 25.06.2009, 07:04
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Re: Notice period/contract

Why immediately a lawyer ???

Just ask your employer if he is ready to pay or not the notice period. If he says yes, well, no problem, if he says no, then threaten to use a lawyer.

It would appear that the employer is a person of certain means. He knows Swiss law and he has to pay, he also knows Swiss courts heavily favour employees in such cases, why take the hastle for a few thousand francs ?

There is a very good chance he will pay up as per contract.
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