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Old 17.07.2019, 19:15
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Unfair immediate dismissal

Hello, I think my case is unique, so I will post it here, maybe I'm biased (it's unfair for me) and somebody else will have a different view on this.

I think the context is important, so here is the story:

Let's call my employer JS.
The company is located in Vaud.
I work remotely from Poland.

It all started with this new website project (part of a bigger project), we had delays in relation to what was estimated (I did the estimation with JS), some parts like translations were not estimated at all (done by another employee), we had management issues, changes on the way and so on, if you did any IT project - you know how it goes. In the end, the website was published on 14.06.2019, before the event/tradeshow on 15/16.06.2019.

Next week (17-21) we did adjustments and bug fixes to the website, on 21.06.2019 I got verbal termination notice (2 months after 2 years+) because JS was not happy with my work from the previous week (there is more to that) - no reason was required - I'm fine with that. JS also said (and wrote in the notice which I received on 26th by email) that if I will perform better in upcoming months they will give me a new contract.

Next week (24-28) we fine-tuned the website to the high standard of JS expectations.
On Friday 28.06.2019 at the beginning of the Iteration review/retrospection JS was harassing me to turn on the camera, I said that I have camera issues (it was connected but not detected) so this is not possible at the moment and I also think it is not essential, given the fact that:
- for the past 28 months everything was fine and this was not a requirement, sometimes is just nice to see the other person on camera and sometimes you just don’t want that for any personal reason
- some employees do not have the camera enabled 90% of the time, yet I was suddenly required to have it enabled - I felt discriminated
- JS personally does not always have the camera turned on, even during very important conversations (work performance talk with me and another employee, a conversation about the end of the contract - another employee told me that)

in response, JS just said to me, I quote: "You have two days to buy a new camera". I did not like the tone of his demand and I said “No”, he started acting very emotionally, repeated his demand and said that I already have one warning (he meant notice period?) and he can dismiss me immediately. I just said that I think it doesn’t work like this, shortly after that he said that we will be in touch and disconnected. Later that day on 23:36 (last working day of the month) I received IMMEDIATE TERMINATION NOTICE based on 13. of the Staff Regulation “immediate dismissal” with the following reasons:

“• Breach of staff regulation 6. Target objectives
o After review, we now realise damages have been caused to the company due
to the delayed delivery of the website as you repeatedly mislead us as to the
status of the project (31st of May, then again on the 5th of June and the 7th of June). The damages caused to the company are due to the fact that we
executed spending in marketing initiatives and tradeshows that could not be
communicated to customers in a timely manner as a result of the 3 weeks
delay in the launch of the website.
o This also resulted in severe damages to our fundraising and investor
reporting initiatives.
o We currently estimated the damage to be at least CHF 17’500.
o Given current discoveries and pending further investigation, we reserve the
right to ask for additional damages.
• Breach of staff regulation 7. Loyalty and diligence duty, remote contractor
agreement 5. Working hours & remote contractor agreement 9. Fidelity
o Finally, after review and in addition to recent event, we now have a strong
suspicion that you did not dedicate all your working hours and energy to the
nterests of the Company.
o As evidenced by sharp decrease in you work productivity (after review of
your work output by two external front-end engineers).
o In addition to that, an incomprehensible sudden refusal (without any
justifications) to activate you’re your webcam at a moment when we are
trying to restore trust in this remote working relationship definitely shattered
any trust we still had, therefore we can’t reasonably be expecting to continue
working together in these conditions.”

My take on it:
Breach 6. - by just looking at the calendar and dates/facts (Slack talks), 3 weeks delay is simply a lie - the website was published on time, we just refined it after the publishing (JS was very picky), proofs: website snapshot before the event, Git commits, Slack messages: website published before the event
Breach 7/5/9 - I honestly do not know how to respond to that ("strong suspicion"? what the?) never got any warning about it. And the part about the camera is just a lie.

Claimed CHF 17’500 is suspiciously equal to 6500 (last month salary) +8000 (unpaid salary from 2018) +3000 (remaining holidays ~10 days) - so they want to pay me nothing.

Personally, I think the employer acted in bad faith and in a hurry (therefore, such poor quality arguments). For the immediate dismissal action, the facts have been exaggerated or manipulated to meet the "serious cause" (Art. 337 CO) definition - all that without any proof.

I politely asked them to restore my access to conversations on all channels of communication (Slack private/public channels, Gmail) or provide a backup of that data. Two times - with no response - is there anything that I can do?

---
Parts of the contract below:

STAFF REGULATIONS

6 TARGET OBJECTIVES
The Employee’s target objectives are determined with the team or with the line manager and published within the Company.

7 LOYALTY AND DILIGENCE DUTY
The employee is obliged to carry out the tasks he has been given with care and to support the legitimate interests of the employer in good faith. He may not compete against the employer in any way during the duration of his employment relationship.

13 IMMEDIATE DISMISSAL
In the event of important reasons within the meaning of Art. 337 et seq. of the Swiss Code of Obligations, the employment relationship can be terminated without a notice period.

15 JURISDICTION
The place of jurisdiction of any disputes arising from these regulations and the contract of employment is governed by Art. 34 of the Swiss Civil Procedure Code (registered office and/or domicile of the defendant or the usual place of work).


REMOTE CONTRACTOR AGREEMENT

5 WORKING HOURS
The Employee is employed to work 100% of normal working hours, which equals to 42 hours per week. Any overtime worked (including any actually incidental work in line with On Call duty) is compensated in full by the salary pursuant to section 7 and Annex 4.

5.2 OVERTIME & FIDELITY
Regarding the second sentence of section 5, the Employee pledges to dedicate all his working hours and energy to the interests of the Employer. Without the written consent of the Employer, the Employee is not permitted to engage in another paid activity or to invest in another company during the term of this contract. This does not apply the usual acquisition of shares or other interests exclusively for investment purposes. The Employee needs the written consent of the Employer to sit on the board of directors or the supervisory board of another company.
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Old 17.07.2019, 19:28
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Re: Unfair immediate dismissal

Are you an employee, or are you an contractor?

However get somebody with proper legal knowledge on the matter and have that person read the contract and all of such.
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Old 17.07.2019, 19:41
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Re: Unfair immediate dismissal

Signed documents: REMOTE CONTRACTOR AGREEMENT, STAFF REGULATIONS, JOB DESCRIPTION, COMPANY MANIFESTO

Beginning of the REMOTE CONTRACTOR AGREEMENT:

"Enter into the following remote contractor agreement as defined in Art. 319 et seq. of the
Swiss code of obligations:

1 PROVISION
This remote contractor agreement enters in force provided the required permits under the
Swiss law to accept the position in the remote contractor agreement are issued by the
relevant authorities. This remote contractor agreement will automatically be void if any such
permit lapses or is revoked.

2 POSITION
The Employer appoints the Employee as software engineer (frontend)."


I'm in contact with a lawyer, but it's a slow process (and he even did not pay attention to it, is it domestic/international dispute or none of this).
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Old 17.07.2019, 19:42
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Re: Unfair immediate dismissal

Reading it all, I have an underlying suspicion that they are planning to shaft you and any other gullible employee/contractor who came their way. Name and shame! Get a legal advice ASAP!
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Old 17.07.2019, 19:47
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Re: Unfair immediate dismissal

Looks like you are an employee but do they pay a pension fund contribution and social security deductions?

Immediate dismissal of an employee because of not meeting an objective and trying to claim the "damage" is in my opinion highly questionable. Basically, your manager didn't do his job of managing very well. I would indeed get in touch with a lawer as soon as possible.
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