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  #21  
Old 08.10.2020, 11:57
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Re: Bonus payout when resigning

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I actually disagree with you on this. The bonus is variable compensation and not deferred compensation.
You can disagree with me you all you wish. Deferred compensation can also be part of the variable compensation. Where I work, once your total compensation hits a certain level any further variable compensation is paid as deferred compensation.
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  #22  
Old 08.10.2020, 11:58
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Re: Bonus payout when resigning

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How could I have informed myself if this isn't part of my employment contract or the employment regulation, not even a reference to such a policy/directive?
But it is - the contract says it is discretionary.

Simply ask yourself - why would they pay a bonus to someone who is leaving thus they don't need to keep happy?

Discretion is being interpreted as what's best for the company, which is totally to be expected. And it seems to be generally applicable, at least to my knowledge in UK, US, CH, PL and UA.
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  #23  
Old 08.10.2020, 11:59
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Re: Bonus payout when resigning

Sorry won't let me edit.
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The reality is that you have no legal right to a bonus and once they know you are leaving it is very unlikely you will receive a payout.
The lack of a legal right to bonus is well understood. What would be interesting is, what constitutes "resign" and the effective date of a resignation from a legal standpoint.

Logo123 and Bowlie seem to allude to the fact that in Switzerland you can announce my resignation with a future . Thus, if properly worded the resignation is effective as of the last day of the employment and as such, could I argue that I actually did not "resign before the payout of the bonus"?
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Old 08.10.2020, 11:59
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Re: Bonus payout when resigning

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me and I have a target payout does not mean that the "the contract so provides" i.e. means diddly squat!
If the contract doesn't say you get paid pro rata then there's nothing in the contract that provides for you getting paid pro rata.

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Our discretionary bonuses are announced mid February and paid out end of March.

Allegedly you need to have not handed your notice in at the time of announcement to be paid. I know of no one in the 11 years I‘ve worked in the Swiss entity (rules in London are clear - resign before payout = forfeit bonus) who has taken the risk of resigning between their bonus being announced and it being in their bank account.
I know one person who resigned before payment but after bonus announcement with a resignation date after the pay date. They thought this was enough to get the bonus. It wasn't.

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Anyone else have experience of what Bowlie is suggesting?
Nope. Quite the opposite.
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  #25  
Old 08.10.2020, 12:17
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Re: Bonus payout when resigning

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I know one person who resigned before payment but after bonus announcement with a resignation date after the pay date. They thought this was enough to get the bonus. It wasn't.


They know you're leaving. They don't have to play nice anymore.
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  #26  
Old 08.10.2020, 12:24
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Re: Bonus payout when resigning

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They know you're leaving. They don't have to play nice anymore.
I don't need them to be "nice". Ideally, I don't want to burn any bridges but if I have legal basis then I might also be inclined to wrestle in the mud so to speak...

RSUs/PSUs, I know I have 1) not hit my targets over the defined period; and 2) no legal basis due to the explicit vesting period. So I have happily waived these good bye (even though these are worth a lot more than my annual bonus). If they are nice, they might let me keep these. If not, fair enough.

Bonus I am a bit more aggrieved about and might be willing to fight for.
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  #27  
Old 08.10.2020, 12:31
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Re: Bonus payout when resigning

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I don't need them to be "nice". Ideally, I don't want to burn any bridges but if I have legal basis then I might also be inclined to wrestle in the mud so to speak...

RSUs/PSUs, I know I have 1) not hit my targets over the defined period; and 2) no legal basis due to the explicit vesting period. So I have happily waived these good bye (even though these are worth a lot more than my annual bonus). If they are nice, they might let me keep these. If not, fair enough.

Bonus I am a bit more aggrieved about and might be willing to fight for.
What don't you understand about 'discretionary', amazed you can earn so much yet appear really dumb. I suspect they will be pleased to see you go.
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  #28  
Old 08.10.2020, 12:34
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Re: Bonus payout when resigning

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What don't you understand about 'discretionary', amazed you can earn so much yet appear really dumb. I suspect they will be pleased to see you go.
Dude - There is no need to start hurling insults, if you ain't got something valuable to contribute, you don't need to comment.

I have asked a simple question, under Swiss Law / Code of Obligation when is an employee deemed to have resigned, is it when the employee hands in his resignation or the last day of his employment?
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  #29  
Old 08.10.2020, 12:34
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Re: Bonus payout when resigning

Depends a bit on the size of the company ... how flexible they are.
Most will not want to establish a precedent => no flexibility.
Where I work, same rule is in the policy: If you resign before the payout date, no bonus will be paid. The resignation date from that perspective is the date on which employment ends, not the date when notice was given.
For RSU/PSU, I am fairly certain they will not 'accelerate' the vesting. That would be against most plan rules and would constitute a precedent.
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  #30  
Old 08.10.2020, 12:39
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Re: Bonus payout when resigning

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Dude - There is no need to start hurling insults, if you ain't got something valuable to contribute, you don't need to comment.

I have asked a simple question, under Swiss Law / Code of Obligation when is an employee deemed to have resigned, is it when the employee hands in his resignation or the last day of his employment?
You resign on the day you hand in notice, you depart at the end of the notice. Should you not work your notice the employer can charge you for any losses to cover your position, short term contractors are more expensive than employees.
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  #31  
Old 08.10.2020, 12:45
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Re: Bonus payout when resigning

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I don't need them to be "nice". Ideally, I don't want to burn any bridges but if I have legal basis then I might also be inclined to wrestle in the mud so to speak...
You have no legal basis.


Perhaps selling tickets for a mud wrestling contest might be slightly more lucrative than the other suggestion of hoping for a generous whip around
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  #32  
Old 08.10.2020, 13:12
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Re: Bonus payout when resigning

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I've seen a bonus payout to a leaver once in my entire 30+ year career.
I got one once.
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  #33  
Old 08.10.2020, 13:33
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Re: Bonus payout when resigning

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The resignation date from that perspective is the date on which employment ends, not the date when notice was given.
See this what my confusion relates to or as FMF said makes me "appear really dumb". Some are stating that the resignation date is the date you hand in the notice whilst others are stating that it is the day I hand in my notice.

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I got one once.
+1 as I stated earlier, my old place paid out my bonus 3 months after I left.
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  #34  
Old 08.10.2020, 13:58
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Re: Bonus payout when resigning

Ok, so it’s clear you are shopping for opinions and don’t like the ones that you have been given by multiple people with decades of experience, both in a personal and managerial capacity.

Your next step is to pay an employment lawyer, who will either tell you that we are all correct or that you are correct. Given the huge sums of money apparently involved, a half hour consultation is going to be a drop in the ocean.
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  #35  
Old 08.10.2020, 13:59
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Re: Bonus payout when resigning

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See this what my confusion relates to or as FMF said makes me "appear really dumb". Some are stating that the resignation date is the date you hand in the notice whilst others are stating that it is the day I hand in my notice.



+1 as I stated earlier, my old place paid out my bonus 3 months after I left.
I think the point is more that this legal fine print has no relevance whatsoever to your question about bonus.

The bonus is discretionary. With the exception of criteria protected under discrimination laws, the company can decide whatever criteria they like to apply that discretion, and resignation is going to be one of them.

Everyone who's replied would bet good money that resignation will trigger that discretion, regardless of any extra obfuscation of the process you try to add.
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  #36  
Old 08.10.2020, 14:11
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Re: Bonus payout when resigning

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Ok, so it’s clear you are shopping for opinions and don’t like the ones that you have been given by multiple people with decades of experience, both in a personal and managerial capacity.
Not quite true, I have had conflicting opinions and just trying to clarify. Here is an example:

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You resign on the day you hand in notice, you depart at the end of the notice.
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The resignation date from that perspective is the date on which employment ends, not the date when notice was given.

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I think the point is more that this legal fine print has no relevance whatsoever to your question about bonus.

The bonus is discretionary. With the exception of criteria protected under discrimination laws, the company can decide whatever criteria they like to apply that discretion, and resignation is going to be one of them.

Everyone who's replied would bet good money that resignation will trigger that discretion, regardless of any extra obfuscation of the process you try to add.
Lets set aside my original question with respect to bonus, I have moved on from that. I just want to understand, from a Swiss law perspective, what is the legal position with respect to resigning? Am I deemed to have resigned when I hand in my notice or the last day of the notice period/employment?

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Your next step is to pay an employment lawyer, who will either tell you that we are all correct or that you are correct. Given the huge sums of money apparently involved, a half hour consultation is going to be a drop in the ocean.
Happy to take recommendation of good employment lawyers from you or anyone else for that matter.
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  #37  
Old 08.10.2020, 14:54
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Re: Bonus payout when resigning

Given that most contracts have a notice period written into it... you would usually be deemed to have resigned as of the day of giving your X months notice, with a leaving date as at the end of the X months notice period.


As per most of the replies here, you will 99.9% likely lose/not get a bonus if you resign before it is paid. If you resign after it is announced and before it is paid, expect to have a fight to keep it.



There is a reason the bonus policy was not detailed the way you want in your contract.


Kind regards






Ian
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  #38  
Old 08.10.2020, 14:54
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Re: Bonus payout when resigning

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Lets set aside my original question with respect to bonus, I have moved on from that. I just want to understand, from a Swiss law perspective, what is the legal position with respect to resigning? Am I deemed to have resigned when I hand in my notice or the last day of the notice period/employment?

You have officially resigned once your employer confirms your letter of notice. After the last day of employment (with or w/o garden leave), the previous contract is considered terminated.


Unless haggling about your job reference is still open, all that remains is where your pension funds should be remitted to.
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  #39  
Old 08.10.2020, 15:11
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Re: Bonus payout when resigning

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You have officially resigned once your employer confirms your letter of notice.
That is incorrect.

A resignation is what is know as a "Empfangsbedürftige Willenserklärung". https://www.vertragsrecht.ch/willen/...zugangsprinzip

You have resigned when the resignation has reached the realm of the recipient. The recipient doesn't even have to read it nor those it have to be acknowledged. Best is to use a mean where you can prove that the resignation has reached the realm of the recipient. This is usually done by using a written resignation notice which is sent it by registered mail.

Most bonus plans usually have the clause that a bonus is only paid if the employee has not resigned / was not sacked at payout time. (Nur zahlbar im ungekündigten Verhältnis).
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  #40  
Old 08.10.2020, 15:44
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Re: Bonus payout when resigning

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That is incorrect.

A resignation is what is know as a "Empfangsbedürftige Willenserklärung". https://www.vertragsrecht.ch/willen/...zugangsprinzip

You have resigned when the resignation has reached the realm of the recipient. The recipient doesn't even have to read it nor those it have to be acknowledged. Best is to use a mean where you can prove that the resignation has reached the realm of the recipient. This is usually done by using a written resignation notice which is sent it by registered mail.

Most bonus plans usually have the clause that a bonus is only paid if the employee has not resigned / was not sacked at payout time. (Nur zahlbar im ungekündigten Verhältnis).
Excellent! Thanks a million, whilst not what I wanted to hear in the context of the bonus situation, it is exactly the clarification I was looking for with respect to the resignation date!
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