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Old 14.01.2019, 18:30
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Released from work during maternity leave

I have a question regarding my wife's job.

During her pregnancy, she was informed that her contract will be terminated after her maternity leave. The three months notice starting the day after her maternity leave. So far everything's correct.
My wife was working 40 % before and has accumulated around 7 weeks of vacation. The idea was to save holidays from last year in order to prolong her maternity leave this year.

We are not sure if the company handles her vacation days correctly. Here is what she was told will happen. She is released from work over the whole three months, but needs to be available for request from the company. However, she has to "pay" for it, with her holiday account.
She did some research any it seems that employers can do that, if they inform the employee well in advance (6 month) in order to give her time to look for a new job.
In her case, she was 30+ weeks pregnant and later then in maternity leave. Can she be expectet to go to job interviews in this phase?

We doubt that and question why her holiday time isn't paid out.
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Old 14.01.2019, 18:55
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Re: Released from work during maternity leave

Holiday time is not normally paid out.

Tom
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Old 14.01.2019, 18:57
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Re: Released from work during maternity leave

I would assume those six months point towards the last months with the last contractual date being the last day. And not at the six month before the notice period would begin.
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Old 14.01.2019, 19:09
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Re: Released from work during maternity leave

In Switzerland, holiday is not paid out but must be held during the notice period except in extraordinary circumstances. It sounds like the company is offering a better deal but "available for request" sounds vague (I assume 7 weeks of vacation is 7 weeks of 2 days due to 40% employment).

The rules are that you must look for a job as soon as you know you are leaving your current one and you must be able to document that you have searched for a job. I've seen other places on here that you should start looking for a job after the 7th week of birth in case that you are unemployed and receive benefits. So I would ensure to have some documentation of a job search for RAV but I doubt that they will request that she go to interviews until after the 7th week from the birth. But I would confirm with RAV.
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Old 14.01.2019, 19:11
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Re: Released from work during maternity leave

During a garden leave such as this, it's normal and legal to say that vacation days are automatically compensated during that leave. However, in her case that is unreasonable as a rule of thumb is that the vacation days should be no more than 1/3 of the duration of the garden leave (note that this is not a firm law, but a guidance). In her case, 7 weeks are almost 2/3 of the entire garden leave of 3 months - that's ridiculous.

Moreover, the automatic compensation only applies if she doesn't have to be available to work upon request. Even if it's highly unlikely they will ever call her in to do anything, even less so given her limited working hours of just 40%, they need to decide a) either garden leave including vacation days compensation, but no expectation to be available for work at any point or b) request her to be potentially available for work, but then the vacation days need to be compensated separately.

Given she has 7 weeks of vacation days left, some proper negotiating is required here. At least 3 weeks of those should be paid out, possibly more. If they refuse, get legal help.

Vacation days can be paid out at the end of an employment contract either way and that's fairly standard procedure, though it usually requires agreement and a fair reasoning as to why the vacation days couldn't be taken before the end of the employment ("convenience" isn't a reason btw). Given she'll be away for months due to her maternity leave, paying them out is the most logical thing to do though. There's absolutely no point in artificially extending an employment just for her to be able to take her vacation.

As for interviews during pregnancy: at least from a RAV viewpoint, you are expected to try to find another job (if you know you'll lose your old one after maternity leave) until I think the 8th month of pregnancy. I would need to look up the exact cutoff time.
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Old 15.01.2019, 12:38
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Re: Released from work during maternity leave

Thank you all for your very helpfull advice.
We don't have to deal with RAV because she decided to be a stay at home mom for the next two years.


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During a garden leave such as this, it's normal and legal to say that vacation days are automatically compensated during that leave. However, in her case that is unreasonable as a rule of thumb is that the vacation days should be no more than 1/3 of the duration of the garden leave (note that this is not a firm law, but a guidance). In her case, 7 weeks are almost 2/3 of the entire garden leave of 3 months - that's ridiculous.

Moreover, the automatic compensation only applies if she doesn't have to be available to work upon request. Even if it's highly unlikely they will ever call her in to do anything, even less so given her limited working hours of just 40%, they need to decide a) either garden leave including vacation days compensation, but no expectation to be available for work at any point or b) request her to be potentially available for work, but then the vacation days need to be compensated separately.

Given she has 7 weeks of vacation days left, some proper negotiating is required here. At least 3 weeks of those should be paid out, possibly more. If they refuse, get legal help.

Vacation days can be paid out at the end of an employment contract either way and that's fairly standard procedure, though it usually requires agreement and a fair reasoning as to why the vacation days couldn't be taken before the end of the employment ("convenience" isn't a reason btw). Given she'll be away for months due to her maternity leave, paying them out is the most logical thing to do though. There's absolutely no point in artificially extending an employment just for her to be able to take her vacation.

As for interviews during pregnancy: at least from a RAV viewpoint, you are expected to try to find another job (if you know you'll lose your old one after maternity leave) until I think the 8th month of pregnancy. I would need to look up the exact cutoff time.
Samaire13, we found out parts of this in our research, too. Thank you for your confirmation.
My wife told me yesterday, that her notice period is just two months, so she should compensate almost all her garden leave (learned a new word here ) with vacation time while still being available, this seems wrong. We checked if we have a Rechtsschutzversicherung and made an appointment with a lawyer. I'll keep you updated on the outcome.
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Old 15.01.2019, 12:44
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Re: Released from work during maternity leave

May understanding is that there is no obligation during vacation to be "available" except for exceptional emergency cases. If you have to be "available" it can not be vacation but it is garden leave.

If you read German in the fog have a look at
https://www.srf.ch/sendungen/kassens...rreichbar-sein
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Old 15.01.2019, 13:06
Elu Elu is offline
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Re: Released from work during maternity leave

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May understanding is that there is no obligation during vacation to be "available" except for exceptional emergency cases. If you have to be "available" it can not be vacation but it is garden leave.
It seems that they can force you to use vacation days for this garden leave. The question is just how much.
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Old 15.01.2019, 13:32
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Re: Released from work during maternity leave

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It seems that they can force you to use vacation days for this garden leave. The question is just how much.
All. But they cannot force you to be available during vacation days. If she has to be available it is not vacation.

Additionally the employer must give you time off for job interviews. So, even if the call you in you have the chance to get a new job. Additionally, vacation should be used for relaxation. Looking for a new job is not relaxation. Means that maybe not all days can be vacation days if no new job is lined up.

https://www.beobachter.ch/arbeit/arb...i-freistellung
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Old 16.01.2019, 00:05
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Re: Released from work during maternity leave

Just my experience - i had similar thing happen, and it wasn't clear if I was working or not working during my notice time, after maternity leave. The company called my a couple times do do half a day project work (as they were no longer in Switzerland). I had 1 months holiday earned, and they didn't pay up. I asked my swiss legal insurance who checked into it, and advised I would be entitled to it. At the end of the day I was available to work anytime. I sent a letter to them and they quickly paid up without getting legal involved.

seems to me the company should be clear now, and if they are not you may be entitled to holiday pay earned during employment contract and notice time. I did the same thing and researched in deductions for gardening leave etc, but the issue is when does she has to available for the company? - this isn't clear, and in theory she might have to arrange childcare for the whole time.
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Old 16.01.2019, 00:49
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Re: Released from work during maternity leave

It's really not very complicated, from a legal standpoint. If they ask her to be available, even if they never make use of it, they can't assume the vacation days are compensated and either need to extend the contract or pay out the full seven weeks of remaining vacation days. Anything else would not be legal. Vacation is vacation, i.e. no work whatsoever, that includes being on call just in case.

The main challenge here is that OP's wife has 7 weeks of vacation for a garden leave of just 3 months. That's not fair and that's exactly what she can say to her employer, including mentioning the 1/3-2/3 rule of thumb.

If they push back and refuse, she can get some legal support elsewhere, but for now there's no need. She has the law on her side on part 1) with no questions asked, and part 2) is initially a matter of negotiation. I would negotiate 4 weeks compensated during garden leave, pay out the remaining 3 weeks, and of course not be available/on call at any point in time during the garden leave.

Some info here: https://www.beobachter.ch/arbeit/arb...i-freistellung, here https://www.derbund.ch/wirtschaft/so...story/19936328 and here https://www.ktipp.ch/artikel/d/ferie...ung-auf-abruf/ all in German (all these sources are reputable enough)
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