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Old 16.11.2020, 17:31
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Illegal for company to not pay contractor for notice period?

Hi all,

Couldn't find any similar or relevant topics to this, so new post:

As a consultant I have a contract with a swiss company, which states a 2 month notice period for termination, from either party.

I'm contracted for a fixed amount of hours per week, then invoice for time worked at the end of the month.

Today the client has told me they want to terminate the contract effective immediately. I stated the notice period and they were keen that it ends now. This is through no fault of mine, but mismanagement leading to money issues elsewhere in the company.


My concern is that I work my notice period, and then invoice for the time, and they don't pay. I assume that this is very illegal - if this happens, can anyone inform me of the right party to lodge a complaint with (Canton FR)?

Do I have the same rights as a contractor as would an employee?


Thanks in advance for any insight!
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Old 16.11.2020, 17:50
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Re: Illegal for company to not pay contractor for notice period?

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Hi all,

Couldn't find any similar or relevant topics to this, so new post:

As a consultant I have a contract with a swiss company, which states a 2 month notice period for termination, from either party.

I'm contracted for a fixed amount of hours per week, then invoice for time worked at the end of the month.

Today the client has told me they want to terminate the contract effective immediately. I stated the notice period and they were keen that it ends now. This is through no fault of mine, but mismanagement leading to money issues elsewhere in the company.


My concern is that I work my notice period, and then invoice for the time, and they don't pay. I assume that this is very illegal - if this happens, can anyone inform me of the right party to lodge a complaint with (Canton FR)?

Do I have the same rights as a contractor as would an employee?


Thanks in advance for any insight!
If it's a zero hours contract, they will pay you zero for the notice period.
I had in writing that a client wished at least a further 100 days, then 2 days later ended......
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Old 16.11.2020, 18:26
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Re: Illegal for company to not pay contractor for notice period?

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If it's a zero hours contract, they will pay you zero for the notice period.
I had in writing that a client wished at least a further 100 days, then 2 days later ended......
Interesting - could you do anything about it/was the 100 days part of a contract?

There's a written commitment in the contract to minimum XX hours per week for the duration of the contract, which I hope should be enough!
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Old 16.11.2020, 18:42
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Re: Illegal for company to not pay contractor for notice period?

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Interesting - could you do anything about it/was the 100 days part of a contract?

There's a written commitment in the contract to minimum XX hours per week for the duration of the contract, which I hope should be enough!
There was never any contract, just ongoing. was supposed to be about 60- 100 days that year.
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Old 16.11.2020, 19:14
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Re: Illegal for company to not pay contractor for notice period?

It would not be illegal in as much as it wouldn't be a criminal offence.

Carefully read your contract. Make sure that they must pay you the minimum hours per week regardless of whether there is work or not.

If you're sure - and you might want to get a lawyer to check - you'd be well advised to negotiate a settlement to avoid the risk of a court case. Otherwise, bill when the amounts are due, go through a dunning process, continue through into a betreibung, then eventually go to court and sue for breach of contract. Rarely, however, when things get to court are they as clear cut as you might wish.

In all the contractor contracts I've worked, there may be a notice period, but there was never an obligation to give work during that notice period. Effectively the notice period was to protect the client against me suddenly leaving.
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Old 16.11.2020, 19:23
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Re: Illegal for company to not pay contractor for notice period?

So the wording is as follows:

2. COMPANY OBLIGATION
The Company commits to provide a minimum 2 days of paid work to the Contractor per
week, during normal office hours (Monday – Friday, 08:00 – 17:00 GMT).


3. CONTRACTOR OBLIGATION
The Contractor commits to work the number of days agreed above in clause 2. In the case the Contractor shall not be in a position to work this contracted amount of days, then only the effective working days will be paid.

So they've put in writing that they will provide a minimum of 2 days work/week. The ask to stop immediately was via a phone call, and I think they're chancing their hand and hoping I'm not au fait with my rights or Swiss employment practice.
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Old 16.11.2020, 19:27
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Re: Illegal for company to not pay contractor for notice period?

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Today the client has told me they want to terminate the contract effective immediately. I stated the notice period and they were keen that it ends now. This is through no fault of mine, but mismanagement leading to money issues elsewhere in the company.
So how did you actually leave it the client. Did they state that they don't intend to pay the notice period, did you plan a handover with them? Are you turning up tomorrow?
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Old 16.11.2020, 19:33
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Re: Illegal for company to not pay contractor for notice period?

As you are not employed this would not be a question of employment practice, only contract law.

You didn't post any part that says there's a two month notice period - if that is watertight the situation seems clear, they must provide you with the work.

I would state by email that you received their request to terminate the contract, which you regret etc etc but that you intend to stand by the notice period and not accept immediate termination.

And emphasise that you are available to work two days a week as per the contract.

And only if it is advantageous to you, mention an early-exit option where they pay you for X days (unworked) which is less than what you would get for working the notice period. Also make this dependent on promptly getting a good reference.
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Old 16.11.2020, 19:45
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Re: Illegal for company to not pay contractor for notice period?

sorry about you, I think you sit at the shorter end of the lever, check this:


https://www.weka.ch/themen/recht/auf...er-doch-nicht/
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Old 16.11.2020, 20:48
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Re: Illegal for company to not pay contractor for notice period?

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sorry about you, I think you sit at the shorter end of the lever, check this:


https://www.weka.ch/themen/recht/auf...er-doch-nicht/
Interesting article - but this seems to suggest that notice periods are in almost all cases void.

How does that work when we all know about minimum contract periods for things like mobile phones, internet etc? Can we now all ignore these bits of the contracts and cancel at will??
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Old 16.11.2020, 20:50
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Re: Illegal for company to not pay contractor for notice period?

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sorry about you, I think you sit at the shorter end of the lever, check this:


https://www.weka.ch/themen/recht/auf...er-doch-nicht/
And here is the wording of the article in question:
https://www.admin.ch/opc/en/classifi...ndex.html#a404

Art. 404 D. Termination / I. Grounds / 1. Revocation, termination
1 The agency contract may be revoked or terminated at any time by either party.
2 However, a party doing so at an inopportune juncture must compensate the other for any resultant damage.
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Old 16.11.2020, 21:18
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Re: Illegal for company to not pay contractor for notice period?

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And here is the wording of the article in question:
https://www.admin.ch/opc/en/classifi...ndex.html#a404

Art. 404 D. Termination / I. Grounds / 1. Revocation, termination
1 The agency contract may be revoked or terminated at any time by either party.
2 However, a party doing so at an inopportune juncture must compensate the other for any resultant damage.
Hold on, this is the wrong OR section!

This case clearly falls under: Title Eleven: The Contract for Work and Services, it isn't an Agency Contract.

https://www.admin.ch/opc/en/classifi...l#id-ni16-ni38

Art. 378 on termination actually specifically states that if the customer makes delivery of the contract impossible (e.g. by not giving the two days of work), then the contractor can claim damages.

https://www.admin.ch/opc/en/classifi...ndex.html#a378
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Old 16.11.2020, 23:04
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Re: Illegal for company to not pay contractor for notice period?

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As you are not employed this would not be a question of employment practice, only contract law.
Generally it's not legal to not pay for work done.


Quote:
You didn't post any part that says there's a two month notice period - if that is watertight the situation seems clear, they must provide you with the work.
Or pay you for the work time if there's no work, possibly less expenses.


Quote:
I would state by email that you received their request to terminate the contract, which you regret etc etc but that you intend to stand by the notice period and not accept immediate termination.
I wouldn't without checking the contract as to how termination should be given.



Quote:
And emphasise that you are available to work two days a week as per the contract.
emphasise that you expect to be paid for equivalent of two days work per week.



With any contract, if one party breaks the contract you can only sue for loss and you have to mitigate that loss. If the OP really is denied work and not paid then he should look for something else.

If the OP works and isn't paid, then I guess it's betreibung and/or lawyer time.
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Old 16.11.2020, 23:09
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Re: Illegal for company to not pay contractor for notice period?

BTW a large company in North Basel tried to do this once. Just complete ignorance on behalf of the managers.
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Old 17.11.2020, 09:21
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Re: Illegal for company to not pay contractor for notice period?

I am a contractor myself - if you have not done it yet, i would recommend, BEFORE even checking any legal alleys, go, sit with them, talk about the end of the project and deliverables, and during the conversation, assure yourself that you have the right side of the manager to pay you.

It might take time, emails and phonecalls (now VC), but worth much more than initiating (or threatening them) with any lawyer-related action.

A little bit of left hand (or iron hand on a silk glove) will take you much further than any legal battle - even mediation. Particularly also because you don't want to burn your bridges....

Best of luck!
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Old 17.11.2020, 09:37
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Re: Illegal for company to not pay contractor for notice period?

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2. In the case the Contractor shall not be in a position to work this contracted amount of days, then only the effective working days will be paid.
I think they're chancing their hand, but it might be argued that if they lock the door and take away your pass, you won't be in a position to work, so they don't have to pay. I do doubt that would stick though - but it is why you should, as suggested, politely decline and state firmly that you are available to work. However, if they go bankrupt, you risk getting nothing - so be prepared to negotiate if they're in real financial trouble.

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How does that work when we all know about minimum contract periods for things like mobile phones, internet etc? Can we now all ignore these bits of the contracts and cancel at will??
No.
Because:
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Art. 404 D. Termination / I. Grounds / 1. Revocation, termination
1 The agency contract may be revoked or terminated at any time by either party.
2 However, a party doing so at an inopportune juncture must compensate the other for any resultant damage.
And the legal interpretation of weka.ch
(wobei «widerrufen» nichts anderes meint als eine Kündigung, die vom Auftraggeber bzw. Kunden ausgesprochen wird).
(whereby "revoked" means nothing other than a notice of termination given by the client or customer).
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Old 17.11.2020, 09:59
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Re: Illegal for company to not pay contractor for notice period?

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I think they're chancing their hand, but it might be argued that if they lock the door and take away your pass, you won't be in a position to work, so they don't have to pay. I do doubt that would stick though - but it is why you should, as suggested, politely decline and state firmly that you are available to work. However, if they go bankrupt, you risk getting nothing - so be prepared to negotiate if they're in real financial trouble.
No they can't do this. As I quoted from OR previously, Art. 378 states that if the customer prevents the contractor providing the agreed service, the contractor may claim damages.

In this case the damages would be easy to calculate as the outstanding fees assuming all parties had fulfilled their obligations, i.e. two days per week work.
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Old 17.11.2020, 14:07
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Re: Illegal for company to not pay contractor for notice period?

Thanks everyone for the input and acting as a sounding board, it's really helpful.

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So how did you actually leave it the client. Did they state that they don't intend to pay the notice period, did you plan a handover with them? Are you turning up tomorrow?
As far as I'm concerned, they haven't given me a written notice of termination, etc, so I'm still working. My situation is weird as this is a remote working/marketing role, so I can still perform at 100%, don't need to be on site, etc.

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I am a contractor myself - if you have not done it yet, i would recommend, BEFORE even checking any legal alleys, go, sit with them, talk about the end of the project and deliverables, and during the conversation, assure yourself that you have the right side of the manager to pay you.

It might take time, emails and phonecalls (now VC), but worth much more than initiating (or threatening them) with any lawyer-related action.

A little bit of left hand (or iron hand on a silk glove) will take you much further than any legal battle - even mediation. Particularly also because you don't want to burn your bridges....

Best of luck!
Thanks I'm not threatening anything yet, and likely wont threaten at all. I just wanted to confirm that the law/regulations were on my side, to negotiate from a position of strength - the iron hand, as you say. I'm also stealing that expression!


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I think they're chancing their hand, but it might be argued that if they lock the door and take away your pass, you won't be in a position to work, so they don't have to pay. I do doubt that would stick though - but it is why you should, as suggested, politely decline and state firmly that you are available to work. However, if they go bankrupt, you risk getting nothing - so be prepared to negotiate if they're in real financial trouble.
I'd agree. The verbal request to stop working immediately, if I did this makes me in breach of contract with no written proof of the request, at which point I'm in the wrong and they could kick me.

As it stands with no written termination, and I can perform my role at 100% remotely, I'm not doing anything and acting as normal. It was one of their stipulations in the contract that the contract cannot be amended without agreement from both parties, in writing (email acceptable), so their words are wind.

I've suggested they need to think about a severance package if they want me to stop right now.

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No they can't do this. As I quoted from OR previously, Art. 378 states that if the customer prevents the contractor providing the agreed service, the contractor may claim damages.

In this case the damages would be easy to calculate as the outstanding fees assuming all parties had fulfilled their obligations, i.e. two days per week work.
Good to know! I can still work remotely, so there's no risk of them blocking me from doing my job, etc. Part of the work is through my own comm's channels, so even if they block me from access to company accounts, I can use my own.

One of the issues is that I proposed taking on some work the company was looking to outsource, the CEO outright said that this other contract/proposal would be in jeopardy if I didn't stop work immediately...again, verbally, so no record. Thankfully I don't need this work, and am confident to walk away after the notice period. I think they need me more than I need them.
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