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Old 12.09.2020, 20:42
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Company went bankrupt: what happens to its obligations?

Hi all, I recently found myself in a situation, where I am not sure what to do, as unfortunately I am not versed in CH law. I tried to get information from various authorities, but so far was rebuffed everywhere. If somebody been in the same or similar situation, an advice or shared experience would be much appreciated.

Thanks in advance.

Background

For 2 years I worked full-time (not a contractor) for a startup in CH. It was not working out, so eventually I found another job and left. The notice period was cut short by mutual (written) agreement between me and the employer, which captured the state of affairs at that time (last working day, amount of outstanding holidays etc.). This agreement was not followed by the employer, as I was not paid salary for the last month and remaining holidays. Also I did not get any exit documents (reference, job certificate, last 12 salary slips). Situation went downhill from there, with ignored written reminders and debt enforcement (Betreibung), which was blocked by the employer without reason. At last, I decided that a court complaint is the only recourse left. However, unexpectedly it was returned to me, on the grounds that the company went bankrupt in the meantime.

Open questions
  • Why bankrupt company cannot be sued?
    I understand that bankruptcy provides protection from creditors, but what about non-monetary claims, like obligation to provide exit documents to departing employee.
  • What happens to outstanding taxes and social contributions, which has to be paid from salaries?
    My attempts to find out if the company paid those on my behalf were met by authorities (tax office, state and private pension funds) with what I can only describe as lack of interest. I was eventually told that apparently company is not obliged to pay these, until the end of year! So until that time comes, they can't take any action and also would not release any information, due to “data protection law”. Needless to say, it is highly unlikely that if company didn't pay salaries to employees and went bankrupt in the middle of the year, it will ever pay anything to the authorities…
    I am increasingly concerned, that when the end of the year does come, this disinterest will vanish, and in absence of the company, authorities will try to extract the money from me. An outcome I would very much like to prevent.
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Old 12.09.2020, 21:33
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Re: Company went bankrupt: what happens to its obligations?

Comments:


1. Unpaid salary: You should file a claim for the unpaid salary per the instructions in the Insolvenzentschädigung guide at the below link. It needs to be done within sixty days of notice of the bankruptcy as published in shab.ch or other official governmental gazettes (German):



https://www.arbeit.swiss/secoalv/en/...oschueren.html


2. Social security contributions:

Insofar as the employee is paid net after deduction of social charges causing the compensation fund (Ausgleichskasse) to credit the social charges on the employee's account, it does not matter that the employer does not actually pay the social charges. Compensation fund may then receive a loss certificate (Verlustschein) from the bankruptcy court. See this link (German):



https://www.sg.ch/wirtschaft-arbeit/...beitgebern.pdf


Also, the board of directors and management can be held personally liable for unpaid employer and employee social charges. Unless you were a member of the board of directors or managing director or similar of this company, I do not see a risk to you regarding unpaid social charges.
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