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  #41  
Old 14.03.2020, 21:00
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Re: Garden Leave

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Hi,


I was fired a couple of months back and in the termination letter they have stated that "You are immediately released from working during your notice period. Any existing overtime credits, unused rest days and holiday days will be obtained in this order from new on, followed by the exemption until the end of the notice period."


Can they use my holiday and overtime credits for notice period ?
Also remember that vacation entitlement accrues during garden leave and through to the end of employment.
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  #42  
Old 14.03.2020, 21:04
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Re: Garden Leave

Quote:
Hi,


I was fired a couple of months back and in the termination letter they have stated that "You are immediately released from working during your notice period. Any existing overtime credits, unused rest days and holiday days will be obtained in this order from new on, followed by the exemption until the end of the notice period."


Can they use my holiday and overtime credits for notice period ?
Perfectly normal. Had you quit the job you would also have to take the rest of holidays/overtime during notice period. But you'd get only those, no extra.

What's your complaint exactly? That they don't make you work until the last possible day after you have been fired?
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  #43  
Old 14.03.2020, 21:11
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Re: Garden Leave

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Perfectly normal. Had you quit the job you would also have to take the rest of holidays/overtime during notice period. But you'd get only those, no extra.

What's your complaint exactly? That they don't make you work until the last possible day after you have been fired?

I want my overtime and holidays to be paid. Why will one use the overtime I did in January use it for somewhere in November.



What is the scenario if one doesnt have any overtime/holiday left ? It is still 3 months right ? So in effect the company is penalizing someone because of putting in extra effort and not going on vacation.


I think the notice period should be a constant period of time and not dependent on overtime/vacation
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  #44  
Old 14.03.2020, 21:24
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Re: Garden Leave

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I want my overtime and holidays to be paid. Why will one use the overtime I did in January use it for somewhere in November.



What is the scenario if one doesnt have any overtime/holiday left ? It is still 3 months right ? So in effect the company is penalizing someone because of putting in extra effort and not going on vacation.


I think the notice period should be a constant period of time and not dependent on overtime/vacation

There is absolutely no legal entitlement for garden leave. Not a single minute. So you should be glad you get it at all (=the extra time off apart from the holidays you got left).

Your logic is too dizzy to me. So I leave you to it.
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  #45  
Old 14.03.2020, 21:29
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Re: Garden Leave

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There is absolutely no legal entitlement for garden leave. Not a single minute. So you should be glad you get it at all (=the extra time off apart from the holidays you got left).

Your logic is too dizzy to me. So I leave you to it.

Some jobs for instance trading have garden leave in their contract. when you are fired, they dont want you around. You will be immediately escorted out.



Garden leaves are put in place for protecting the employers getting more damage done by the pissed employee.



I thought my logic was simple. Just simple time concept.
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  #46  
Old 15.03.2020, 00:27
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Re: Garden Leave

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May be swiss law.

Swiss law would deny you your right to be compensated for outstanding vacation time however there was someone who successfully argued in court that in some circumstances this was unfair. It's this precedent that is relied on but the law itself hasn't changed. If it has, then let me know.


I know it seems unfair, and I used to tell everyone in the office to use up their holidays, but you need to think of you yourself independently of anyone else. Are you, yourself, losing anything? No.
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  #47  
Old 15.03.2020, 01:12
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Re: Garden Leave

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The fun part is " They added that after I sued them in the court ". Because I claimed holidays and overtime in the law suit.

Actually the funny part is that you are in a law suit with the company, so presumable you have a lawyer.... and you are asking us for legal advice, while paying your lawyer for it...........
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  #48  
Old 15.03.2020, 01:53
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Re: Garden Leave

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Some jobs for instance trading have garden leave in their contract. when you are fired, they dont want you around. You will be immediately escorted out.



Garden leaves are put in place for protecting the employers getting more damage done by the pissed employee.



I thought my logic was simple. Just simple time concept.
You logic is simple and I agree with it. I have suggested to friends to argue the logic of the company and many have successfully.

However you asked about "can it be done?" And yes, it can. Because legally the company can make you work until your notice period is over. And if they choose to let you stay home, then vacation is deemed taken. Sucks but that is the way it is.
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  #49  
Old 15.03.2020, 03:50
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Re: Garden Leave

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Actually the funny part is that you are in a law suit with the company, so presumable you have a lawyer.... and you are asking us for legal advice, while paying your lawyer for it...........
Nope I don't have a lawyer.. that's why posting it here.

Still in the arbitration phase. This was part of the defendants statement I received recently. As I told earlier, they have modified the termination letter to include this paragraph.
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Old 15.03.2020, 03:57
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Re: Garden Leave

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Swiss law would deny you your right to be compensated for outstanding vacation time however there was someone who successfully argued in court that in some circumstances this was unfair. It's this precedent that is relied on but the law itself hasn't changed. If it has, then let me know.


I know it seems unfair, and I used to tell everyone in the office to use up their holidays, but you need to think of you yourself independently of anyone else. Are you, yourself, losing anything? No.
Yeah there was a similar thread where the vacation days were paid.

Yes, I am losing my overtime hours and vacation days. The extra money
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  #51  
Old 15.03.2020, 04:49
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Also before firing me they cut my salary for taking extra days off. ( the reason for taking extra days off was a compelling one ). These holidays would have been accrued during my notice period.

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*Update* for those who are interested.

My husband addressed this question to a lawyer, specialized in employment law, consultation fees covered according to the Rechtschutzversicherung.

The lawyer said it was a clear case and he needed to be paid. Eventually, he got 12 days paid, and not the requested 15, as the former employer found out that my husband was away for 3 days during the garden leave.

Thank you for your support!

Hey, I am having a similar problem. I was put on a garden leave after I got fired. The employer took my overtime hours and holiday balance. Do you think I can get them back ?

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Swiss law would deny you your right to be compensated for outstanding vacation time however there was someone who successfully argued in court that in some circumstances this was unfair. It's this precedent that is relied on but the law itself hasn't changed. If it has, then let me know.


I know it seems unfair, and I used to tell everyone in the office to use up their holidays, but you need to think of you yourself independently of anyone else. Are you, yourself, losing anything? No.



Could you please point out to where this is stated ? I was googling it but could not find any official documents.

Last edited by 3Wishes; 05.06.2020 at 18:56. Reason: merging consecutive replies
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  #52  
Old 04.06.2020, 18:53
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Re: Garden Leave

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Also remember that vacation entitlement accrues during garden leave and through to the end of employment.
Interesting, thank you.
Do you know an article or law that supports this ?

Thanks
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  #53  
Old 05.06.2020, 16:29
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Re: Garden Leave and untaken/ accrued holidays

For your info. I found this on the swiss website. Employers cannot force employees to take the leave.


https://www.kmu.admin.ch/kmu/en/home...-contract.html



Termination of contract and balance of leave

Employees who still have leave to use up may ask to take this leave once termination has been announced. However, an employer who has decided to terminate the contract of one of its employees may not force them to take their leave and will sometimes need to pay compensation in cash.
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  #54  
Old 05.06.2020, 17:00
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Re: Garden Leave and untaken/ accrued holidays

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For your info. I found this on the swiss website. Employers cannot force employees to take the leave.


https://www.kmu.admin.ch/kmu/en/home...-contract.html



Termination of contract and balance of leave

Employees who still have leave to use up may ask to take this leave once termination has been announced. However, an employer who has decided to terminate the contract of one of its employees may not force them to take their leave and will sometimes need to pay compensation in cash.
I was very surprised to read that. I still doubt, one gets three months garden leave plus extra pay for holidays.
The phrasing is a bit "rubbery" (not unusual here, LOL): <<will sometimes need to pay compensation in cash>>.
But hey, it's the admin.ch site. Still, I would like to read about the "finer points" (as they titled the whole page) of this claim.
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Old 05.06.2020, 19:28
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Re: Garden Leave and untaken/ accrued holidays

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I was very surprised to read that. I still doubt, one gets three months garden leave plus extra pay for holidays.
The phrasing is a bit "rubbery" (not unusual here, LOL): <<will sometimes need to pay compensation in cash>>.
But hey, it's the admin.ch site. Still, I would like to read about the "finer points" (as they titled the whole page) of this claim.

These are my opinions and I think these make sense.



The notice period in general is put in place as to give sufficient time to either employee/employer to find a new job/ new candidate.



The vacation is like a benefit given to the employee on top of the gross salary. He is entitled to all those days and the employer shouldn't take those away for any reason. All the balance leaves should be paid in cash.


Notice period of 3 months or whatever is defined should be strictly followed. An employee cannot cut down the notice period by taking leaves or an employer forcing the employee to take leaves. If the employee wants to take the leaves and cut down his notice period, the decision should be left out to the employer. If the employer wants to force the employee to take a leave then it should be upto the decision of the employee.


I think this way the laws are neutral to both employees and employer.


People have a misconception that garden leave is helping the employee and he gets to enjoy a vacation by being paid. The truth is garden leave is given only in cases where the employer feels that the cost of keeping the employee is much higher than giving him a paid vacation. The garden leave is given by the employer and the employee cannot take a garden leave on his own.
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  #56  
Old 05.06.2020, 22:41
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Re: Garden Leave and untaken/ accrued holidays

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The vacation is like a benefit given to the employee on top of the gross salary. He is entitled to all those days and the employer shouldn't take those away for any reason. All the balance leaves should be paid in cash.
That is not exactly correct. Vacation is not on top of salary but included in salary. The annual salary is calculated incl. the 4 or whateven number of weeks of vacation. And this time is intended to let the employee recover.
At the same time, it is still the employer who primarily decides when vacation can be taken; not the employee. Otherwise it would be impossible to ensure continuity - in factories etc.


Quote:
Notice period of 3 months or whatever is defined should be strictly followed. An employee cannot cut down the notice period by taking leaves or an employer forcing the employee to take leaves. If the employee wants to take the leaves and cut down his notice period, the decision should be left out to the employer. If the employer wants to force the employee to take a leave then it should be upto the decision of the employee.
Not entirely correct. It is the employer who has the right to decide when vacation can be taken.
In some posts in this thread, posters referred to the "1/3 rule". While not specifically included in the law, it has been the practice that employer may deduct vacation in the lengths of up to 1/3 of the duration of the garden leave (not the other way round, as some stated). So, for a 3-month garden leave, employer may legitiamtely deduct up to 4 weeks of vacation.
Usually, they cannot deduct overtime balance, unless specifically agreed or included in the company policy.

How many days of vacation are you actually talking about?
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  #57  
Old 05.06.2020, 23:18
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Re: Garden Leave and untaken/ accrued holidays

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That is not exactly correct. Vacation is not on top of salary but included in salary. The annual salary is calculated incl. the 4 or whateven number of weeks of vacation. And this time is intended to let the employee recover.
At the same time, it is still the employer who primarily decides when vacation can be taken; not the employee. Otherwise it would be impossible to ensure continuity - in factories etc.



Not entirely correct. It is the employer who has the right to decide when vacation can be taken.
In some posts in this thread, posters referred to the "1/3 rule". While not specifically included in the law, it has been the practice that employer may deduct vacation in the lengths of up to 1/3 of the duration of the garden leave (not the other way round, as some stated). So, for a 3-month garden leave, employer may legitiamtely deduct up to 4 weeks of vacation.
Usually, they cannot deduct overtime balance, unless specifically agreed or included in the company policy.

How many days of vacation are you actually talking about?

I clearly stated that the rules mentioned are according to my opinion but in no way reflect the laws of Switzerland. I disagree with your responses but again as I said, the points mentioned are just my opinion.
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  #58  
Old 09.06.2020, 22:49
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Re: Garden Leave and untaken/ accrued holidays

thanks.

Do you know how to actually count days ? One example mentionned 2*21.75 for a 2 month notice period.
I had 3 months notice period but was effectively out of office more than that (because the 3 months period starts at month end, and because as I was sick, the start was delayed by one more month).
If I count the days where I was paid and not in the office, it's more than the 3*21.75.
Then I saw an article stating that holidays also accrue during the garden leave.
My ex company used the 1/3rd formula to come up with a number of days but I come up with almost 3x their number (i had a lot of days untaken when i left)
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  #59  
Old 12.05.2021, 12:03
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Re: Garden Leave and untaken/ accrued holidays

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For your info. I found this on the swiss website. Employers cannot force employees to take the leave.


https://www.kmu.admin.ch/kmu/en/home...-contract.html



Termination of contract and balance of leave

Employees who still have leave to use up may ask to take this leave once termination has been announced. However, an employer who has decided to terminate the contract of one of its employees may not force them to take their leave and will sometimes need to pay compensation in cash.

Your message helped me to get a small amount of my holidays/overtime back.

This is the feedback from my company:

-----START SNIP

We have reviewed your questions with our legal department.

Herewith I would like to summarize our point of view pertaining the termination notified to you on xxxxx on regards to overtime, flexible-time and holiday entitlements:

YYYYYY, as the employer may order vacation to be taken during garden leave. However, sufficient time must be left for job searching, as well as sufficient time to plan the vacation. According to Swiss case law and practice, the rule has developed that use of vacation days may be required for up to one third of the duration of the garden leave
With respect to flexible-time/overtime, the employer in principle cannot unilaterally order that it be compensated with time off, unless the employee has pre-agreed contractually to such compensation of flexible-time/overtime with time off. YYYYYY has such a contractual agreement in place with its employees through YYYYYY’s Timekeeping Regulation (“Zeitreglement”) which constitutes an integral part of the Employment Agreement. Again, there must be sufficient time for job searching and planning. Therefore, in practice, the same rule applies that only up to one third of the garden leave period may be used to compensate flexible-time/overtime
In summary, the 1/3 rule is cumulative for both flexible-time/overtime and vacation time.

Based on the above, we will be paying 7,5 working days (which are the number of working days exceeding 1/3 of the working days remaining in your period of garden leave until termination) on your last payroll (xxx 2021), herewith the calculation for your reference:



Time in leave of Absence: 80 working Days

1/3 Time in leave of Absence: 26.66 working Days

Days remaining to pay: 7,5 working days

----END SNIP
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Old 12.05.2021, 17:04
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Re: Garden Leave and untaken/ accrued holidays

I do not follow the logic here
- you had 80-days of outstanding holidays ?
- are you sure - do you have that in written ?

You were let go and you did not take holidays when employer now is offering you to pay 7.5. days ?

What happened to remaining 72.5 days ?

I guess you have a case for legal action here as you were (most likley) not offered minimum of 2-weeks continuous holidays in every calendar year .

Just to be clear - to accommodate 80-days - one would need to work between 3-4 years (20-25 days a year depends on age) - with no holidays at all. That be wrong doing by employer in my mind.

Btw - weren't you planning to leave the country and go to IT?
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