My OH has a written employment contract that includes a non compete agreement. The company is in a financial bind and are currently looking for investors or shopping the company for a buyer. They announced at the end of March that the March salaries could not be paid. In the meantime, employees were told they had to come to work to be eligible for back pay in the event that the company filed for bankruptcy. However, my concern is that they drag this out for weeks or months holding employees hostage or new owners come in with new contracts that are unacceptable. In the latter situation, if he turns down the new contract, he would not get unemployment pay from RAV and also would not be able to work for any company that could be considered a competitor. This would somewhat limit his employment opportunities.

He asked Human Resources if he did not get paid within the month if his contract was breached and his non compete invalid. Human Resources said no, he was bound to his contract. Either way looks like new contracts may be issued. This has all happened within the last week, so a call to RAV is on the list. It is almost certain new contracts will not meet his current salary requirement. The questions are: 1) When is the company in breach of the contract? 2) If he is offered a new contract and he declines it, is he bound by the old non-compete agreement?

1) In Switzerland an employee can quit a position for any or no reason and still obtain RAV unemployment compensation. RAV will penalize some days for it.

2) An employee can terminate an employment contract immediately (fristlos) for important reasons including non-payment of wages. It is often recommended that steps be taken by the employee to document this including sending a registered letter inquiring when payment of wages is to be expected and filing a formal Betreibung against the employer. Suggest reading this:

http://www.awa.tg.ch/documents/Infob...endem_Lohn.pdf

3) Non-competition agreements are a complex subject. This states that a non-compete agreement would be invalid if the employee terminates the employment contract for a valid reason caused by the employer:

"Gemäss Art. 340c Abs. 2 OR entfällt es ausserdem, wenn der Arbeitgeber das Arbeitsverhältnis kündigt, ohne dass ihm der Arbeitnehmer dazu begrün deten Anlass gegeben hat, oder wenn es der Arbeitnehmer aus einem begründeten, vom Arbeitgeber zu verantwortenden Anlass auflöst."

http://www.beobachter.ch/arbeit-bild...job-gefesselt/

https://www.walderwyss.com/publications/553.pdf

Possibly you should speak with a labor law attorney. I can suggest one to you by PM.

1. If the employer does not fulfill or breaks any point in the contract. Do check the "Betriebsreglment" or a collective labor contract "GAV" in case both existing. The payment for labor is the prime duty of the employer!!!!
In case march payroll is not on account on 4th of April send them a registrated letter with headline "Mahnung" and ask them to pay in 5 Banking days otherwise he will be forced to react according to the law. Dont waste time.

2. A amendment is a termination of the contract from employer side. You have to accept nothing if you do not want and the old contract still will be in force for a period of time (period of notice).
The problem is after you Register with the "RAV" or rather the "Arbeitslosenkass", they will ask the parties why another agreement was not accepted. Only if the new contract was unreasonable within the meaning of the law a 60-Day penalty is very likly to get.




Dont worry about this non compete agreement. Once he is out of the legal binding contract between employer and employee he is not fixed to this stuff. He can do what he wants to do after leaving the job
No Money = No duty



My advice: Do write this Reminder, if no money comes, he should stop to work and go to JUdge as fast as possible. This takes 2 up to 4 weeks. So no time to waste.