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Old 13.02.2018, 19:28
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Termination of employment even when a contract is accepted.

Good evening everyone who is using the English forum.

I have a small problem that maybe somebody could help with. Here is my background story:

I have worked for the same company for the last 11 years without an official contract.

On 29.12.2017 my employer told me that my 100% contract would be cut to an hourly wage contract on 01.01.2018. I received the new contract in the middle of January & I wasn’t happy with it thus didn’t sign it because I believe that there should be a 3 month notice period from either side should a contract change be made. I explained this to my employer and that I was happy to accept their new conditions from 01.04.2018 due to the notice period.

On 25.01.2018 my employer sent me a termination letter, explaining that they offered me a new contract but that I didn’t accept it so they have the right to terminate my employment after 3 months. I have talked to them but they are adamant that their decision is correct & they will not change their minds.

Unfortunately it looks like I will be out of a job at the end of April, but my question is that are employers allowed to do this even though the termination conditions of the original contract were incorrect? In essence I have agreed to the new contract but just from a different date.

Does anyone have any suggestions as to what I should do now? Just accept the termination & apply to the RAV or beg for my job back?

Many thanks, Pete
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Old 13.02.2018, 19:39
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Re: Termination of employment even when a contract is accepted.

You accept the termination (nothing you can do about it, they'll never rescind it now) and go to the RAV.

There's a possibility that they've in someway breached your original contract and could be sued for that - however, since it wasn't written, I doubt you'd get very far. If you have legal insurance though you could look into it. Or spend 200CHF or so on a consultation with a lawyer.
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Old 13.02.2018, 20:35
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Re: Termination of employment even when a contract is accepted.

Thanks for your reply. I’ve been told by a friend to get in contact with a lawyer but if he company is only going to get a slap on the wrists for being naughty then I don’t think that it would be worth while. Looks like I’ll have to update my CV in the coming weeks
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Old 13.02.2018, 20:52
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Re: Termination of employment even when a contract is accepted.

Despite that the employer did things on very short term, this is basically how Switzerland rolls. Either you accept the changes or you are out (and sometimes after that again offered the new contract) Aslong as the employer does not say the moment he offers you the changed contract that you have to sign or will be out there is no wrong doing in such.

As for begging for your job, we do not know your position on the labour market or if you can take a cut in the budget and how dependent you are on this one specific job, this is a choice you have to make, and pride is nice but we sometimes have to realise that pride does not pay the rent.

As for the termination, it does not deserve a beauty price, but he now sticks to the terms and is free to fire you whenever he wants (unless you are in the military or pregnant...). Even if you would get something out of it by making a case out of this it would be a max of a few months only, but compared to a normal loss of your job you are not missing out on anything so you might bare the risk of ending up paying for all.
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Old 13.02.2018, 21:29
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Re: Termination of employment even when a contract is accepted.

Hi Edwin. Thanks for your reply.

I was given the choice of sign the new contract or your out when I spoke to them, even telling them that I would be prepared to accept it after the notice period, but they weren’t having any of it. I would like to say it’s not very fair, but if that’s the way Switzerland rolls then so be it, it’s something I’ll have to accept.
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Old 13.02.2018, 21:30
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Re: Termination of employment even when a contract is accepted.

Not enough information (no need to give more though ), if it's as you say, you are correct re termination time.
Problem: You had no contract. Weirdest thing: You worked for 11 years without a contract? That is strange in itself but if you're not Swiss it's basically impossible.
However, NotAllThere has rounded it up for you. Except one important thing: Take that new contract with you to RAV and tell them the story. They will possibly be VERY interested in this.
That will still not benefit you directly but may stop strange practises.

Very important: Wait about 6 months, then get an "AHV-Auszug" from here and check whether they payed your AHV/IV at all/correctly!! Seriously!! Do not forget to do that!
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Old 13.02.2018, 21:47
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Re: Termination of employment even when a contract is accepted.

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Not enough information (no need to give more though ), if it's as you say, you are correct re termination time.
Problem: You had no contract. Weirdest thing: You worked for 11 years without a contract? That is strange in itself but if you're not Swiss it's basically impossible.
However, NotAllThere has rounded it up for you. Except one important thing: Take that new contract with you to RAV and tell them the story. They will possibly be VERY interested in this.
That will still not benefit you directly but may stop strange practises.

Very important: Wait about 6 months, then get an "AHV-Auszug" from here and check whether they payed your AHV/IV at all/correctly!! Seriously!! Do not forget to do that!
Hi curley. Thanks for the advice. I had a contract but it wasn’t written, only verbal, but my salary slip, holiday periods etc. Show that I have had the same conditions for the last 10 years & a friend told me that I automatically had a kungigungsfrist of 3 months due to working for over 10 years.

Anyway, I’m booking a 1 way ticket to RAV In The near future.
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Old 13.02.2018, 21:55
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Re: Termination of employment even when a contract is accepted.

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Hi curley. Thanks for the advice. I had a contract but it wasn’t written, only verbal, but my salary slip, holiday periods etc. Show that I have had the same conditions for the last 10 years & a friend told me that I automatically had a kungigungsfrist of 3 months due to working for over 10 years.

Anyway, I’m booking a 1 way ticket to RAV In The near future.
That is correct. You pointed it out. They accepted it as their mistake. Only, they did not make the offer of the new contract again.
Legally it's all correct now. I'm sorry, I'm not being cynical, I know it feels crap.
Good luck for you to find a better company. Soon.
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Old 13.02.2018, 22:24
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Re: Termination of employment even when a contract is accepted.

Actually, you were right and they were not.

They were obliged to give you three months to decide - that is the normal notice period even if you have no written contract. Not only is there NO formality requirement for work contracts - though as usual in writing is highly recommended. But also, after 11 years, you definitely have rights and a proper employment relationship is clearly implied. As the notice period is 3 months by default after 10 years - contract or not, written or not - you were correct in telling them to stick to the notice period and offer a new contract by April 1. This is an Änderungskündigung and it is not allowed to enforce changes immediately (I mean Dec 29 to Jan 1 - what the hell) and then not even follow up with a contract immediately.

I AM NOT A LAWYER. But I am not sure this termination, as it is now, is valid, particularly because you DID accept the new conditions - just within the timeframe you are legally entitled to.

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Eine Arbeitnehmerin war nicht bereit, eine sofortige Lohnreduktion von 500 Franken zu akzeptieren. Darauf erhielt sie die Kündigung, verbunden mit einem Vertragsangebot zu wesentlich schlechteren Bedingungen. Der Arbeitgeber offerierte, die Kündigung zurückzuziehen, falls die Frau der sofortigen Lohnkürzung doch noch zustimme.

Laut Bundesgericht ist das ein unzulässiger Druckversuch und daher missbräuchlich – wegen des konkreten Vorgehens des Arbeitgebers und nicht etwa wegen der geplanten Änderung der Arbeitsbedingungen (Urteil BGE 123 III 246).

https://www.beobachter.ch/arbeit/arb...-und-was-nicht

http://relevancy.bger.ch/php/clir/ht...5&azaclir=clir
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Old 13.02.2018, 22:47
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Hi Samaire13, many thanks for your input. I don’t think that it’s very fair the way that they have conducted themselves, but even though this may be an “Änderungskundigung” can this help me in any way because I’m 99.9% sure that they won’t keep me in their company? Regards, Pete

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Hi Samaire13, many thanks for your input. I don’t think that it’s very fair the way that they have conducted themselves, but even though this may be an “Änderungskundigung” can this help me in any way because I’m 99.9% sure that they won’t keep me in their company? Regards, Pete
Thanks for the links too

Last edited by 3Wishes; 13.02.2018 at 22:54. Reason: merging consecutive replies
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Old 13.02.2018, 22:58
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Re: Termination of employment even when a contract is accepted.

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Hi Samaire13, many thanks for your input. I don’t think that it’s very fair the way that they have conducted themselves, but even though this may be an “Änderungskundigung” can this help me in any way because I’m 99.9% sure that they won’t keep me in their company? Regards, Pete
I'll explain how this should have worked:
On December 29, they should have informed you of the changed conditions, handed you a new contract (or a contract at all for that matter) in which there should have been a clear outline of the new conditions and a comment that should you decide to NOT accept these new conditions, your existing (verbal) contract will automatically end by March 31.

However, as they did none of that, but instead not only put pressure on you but also gave you no contract until 4 weeks later, I'd go as far as to say this termination is abusive. And anyone who knows me on this forum knows that I really hardly ever say that as in 99% of cases, contract terminations are valid and due to low employee protection in Switzerland, there's hardly ever any option to take legal action.

Whether they want to keep you or not is irrelevant. But there's a good chance they need to compensate you somehow for this one. They pressured you into accepting something - again not even in writing - within a few days, then refused to accept that you asked for what you were legally entitled too - three months of time. Sounds like all kinds of wrong to me, also based on the posted links (particularly the BGE - i.e. precedents set by the highest court in Switzerland)

Get legal help if you are interested in putting up a fight here, even if you end up not continuing to work there (why would you even want to....)

Also, bring ALL of this to RAV, you'll need it...
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Old 13.02.2018, 23:10
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Re: Termination of employment even when a contract is accepted.

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I'll explain how this should have worked:
On December 29, they should have informed you of the changed conditions, handed you a new contract (or a contract at all for that matter) in which there should have been a clear outline of the new conditions and a comment that should you decide to NOT accept these new conditions, your existing (verbal) contract will automatically end by March 31.

However, as they did none of that, but instead not only put pressure on you but also gave you no contract until 4 weeks later, I'd go as far as to say this termination is abusive. And anyone who knows me on this forum knows that I really hardly ever say that as in 99% of cases, contract terminations are valid and due to low employee protection in Switzerland, there's hardly ever any option to take legal action.

Whether they want to keep you or not is irrelevant. But there's a good chance they need to compensate you somehow for this one. They pressured you into accepting something - again not even in writing - within a few days, then refused to accept that you asked for what you were legally entitled too - three months of time. Sounds like all kinds of wrong to me, also based on the posted links (particularly the BGE - i.e. precedents set by the highest court in Switzerland)

Get legal help if you are interested in putting up a fight here, even if you end up not continuing to work there (why would you even want to....)

Also, bring ALL of this to RAV, you'll need it...
Super advisce Samaire13, even if it helps with the RAV. Thank you once again
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Old 13.02.2018, 23:16
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Re: Termination of employment even when a contract is accepted.

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Actually, you were right and they were not.

They were obliged to give you three months to decide - that is the normal notice period even if you have no written contract. Not only is there NO formality requirement for work contracts - though as usual in writing is highly recommended. But also, after 11 years, you definitely have rights and a proper employment relationship is clearly implied. As the notice period is 3 months by default after 10 years - contract or not, written or not - you were correct in telling them to stick to the notice period and offer a new contract by April 1. This is an Änderungskündigung and it is not allowed to enforce changes immediately (I mean Dec 29 to Jan 1 - what the hell) and then not even follow up with a contract immediately.

I AM NOT A LAWYER. But I am not sure this termination, as it is now, is valid, particularly because you DID accept the new conditions - just within the timeframe you are legally entitled to.
It is not a Änderungskündigung since they after telling him he is fired never made an offer again.
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Old 13.02.2018, 23:20
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Re: Termination of employment even when a contract is accepted.

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I'll explain how this should have worked:
On December 29, they should have informed you of the changed conditions, handed you a new contract (or a contract at all for that matter) in which there should have been a clear outline of the new conditions and a comment that should you decide to NOT accept these new conditions, your existing (verbal) contract will automatically end by March 31.

However, as they did none of that, but instead not only put pressure on you but also gave you no contract until 4 weeks later, I'd go as far as to say this termination is abusive. And anyone who knows me on this forum knows that I really hardly ever say that as in 99% of cases, contract terminations are valid and due to low employee protection in Switzerland, there's hardly ever any option to take legal action.

Whether they want to keep you or not is irrelevant. But there's a good chance they need to compensate you somehow for this one. They pressured you into accepting something - again not even in writing - within a few days, then refused to accept that you asked for what you were legally entitled too - three months of time. Sounds like all kinds of wrong to me, also based on the posted links (particularly the BGE - i.e. precedents set by the highest court in Switzerland)

Get legal help if you are interested in putting up a fight here, even if you end up not continuing to work there (why would you even want to....)

Also, bring ALL of this to RAV, you'll need it...
Sorry to bother you again Samaire13, but if I decided to take legal action against this company would I have to start proceedings immediately or could I wait until after 30.04.18 as this will be my last day of work because things could become very uncomfortable in the work place if I were to do this right now? Thanks again, Pete.
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Old 13.02.2018, 23:22
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Re: Termination of employment even when a contract is accepted.

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I'll explain how this should have worked:
On December 29, they should have informed you of the changed conditions, handed you a new contract (or a contract at all for that matter) in which there should have been a clear outline of the new conditions and a comment that should you decide to NOT accept these new conditions, your existing (verbal) contract will automatically end by March 31.
This is exactly what they should not do, it is seen as abusive to threaten with getting fired if the new contract will not be signed. So if we would forget about the short term they handled correctly at start. What they should do is.

- Make offer.
- When offer is not accepted give notice and fire someone.
- Offer new contract again if they still feel like it.
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Old 13.02.2018, 23:26
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Re: Termination of employment even when a contract is accepted.

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It is not a Änderungskündigung since they after telling him he is fired never made an offer again.
It is. They wanted to unilaterally change the conditions of the contract = Änderungskündigung. You can't waltz in as an employer one day and say, oh sorry, as of tomorrow, you'll be paid differently. There was no need to follow up with another offer - they made one, but didn't follow the law on it.

The termination may well still become effective. But that doesn't mean this was the legal way to go and that OP isn't entitled to some other form of compensation.

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- Make offer.
- When offer is not accepted give notice and fire someone.
- Offer new contract again if they still feel like it.
You're missing the key point: the offer was not made according to the law. Plus LittlePete accepted the offer - just within the timelines he is entitled to.

The idiots would have been better off just terminating him (if they wanted to do that), but they now dug themselves quite the hole.
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Old 13.02.2018, 23:27
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Re: Termination of employment even when a contract is accepted.

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This is exactly what they should not do, it is seen as abusive to threaten with getting fired if the new contract will not be signed. So if we would forget about the short term they handled correctly at start. What they should do is.

- Make offer.
- When offer is not accepted give notice and fire someone.
- Offer new contract again if they still feel like it.
Hi Edwin, they gave me an offer which I accepted after the 3 month notice period, only for them to turn around & say that your fired because I didn’t accept their 1st offer to change my contract after a few days.
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Old 13.02.2018, 23:40
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Re: Termination of employment even when a contract is accepted.

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Sorry to bother you again Samaire13, but if I decided to take legal action against this company would I have to start proceedings immediately or could I wait until after 30.04.18 as this will be my last day of work because things could become very uncomfortable in the work place if I were to do this right now? Thanks again, Pete.
I would consult a lawyer for now and ask him if there's anything there, and they'll probably be better equipped to recommend the best way forward. I'd say to get that help sooner rather than later - can't hurt to get some input already, it may all take a while anyway and they don't have to know immediately. Why don't you make use of free legal help initially:

For Lucerne: Der Luzerner Anwaltsverband bietet eine unentgeltliche Rechtsberatung gegen obligatorische Voranmeldung jeden Mittwoch von 17.00 - 19.00 Uhr (während Schulzeiten) an der Universität Luzern, Frohburgstrasse 3 in 6005 Luzern (lav.ch) (just one example, there are other options)
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Old 13.02.2018, 23:43
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Re: Termination of employment even when a contract is accepted.

I’ll take your advice on that. Many thanks & have a nice evening, Pete
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Old 13.02.2018, 23:47
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Re: Termination of employment even when a contract is accepted.

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It is. They wanted to unilaterally change the conditions of the contract = Änderungskündigung. You can't waltz in as an employer one day and say, oh sorry, as of tomorrow, you'll be paid differently. There was no need to follow up with another offer - they made one, but didn't follow the law on it.

The termination may well still become effective. But that doesn't mean this was the legal way to go and that OP isn't entitled to some other form of compensation.



You're missing the key point: the offer was not made according to the law. Plus LittlePete accepted the offer - just within the timelines he is entitled to.

The idiots would have been better off just terminating him (if they wanted to do that), but they now dug themselves quite the hole.
An Änderungskündigung is cancelling the current contract by giving notice and after that making a new offer, this has never happened here. I am saying nowhere that they handled correctly but since they never made him an offer again after firing him it is not a Änderungskündigung.
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