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Old 11.12.2020, 01:07
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unused leave

I am wondering what is the standard rule to cashing out unused holidays while leaving job? Can the employer force someone to take holidays from the lock down period stating that the employee did not work properly during that time? In order words, can the employer refuse to pay for the unused holidays when someone leaves jobs by giving excuses like: quality of the work was not good, did not work properly etc.?
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Old 11.12.2020, 12:12
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Re: unused leave

Generally an employer can say when you can or can't take holiday but there are a few restrictions. Certainly they can't claim retrospectively that some of your work days should be now be vacation days unless you really took those days like a holiday. I know there are things going on with "kurzarbeit". It might have something to do with that but it seems unlikely from what you said.


Seek some advice. There are usually some free advice services around. You don't have legal insurance, right?
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Old 12.12.2020, 00:58
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The following is the situation of a foreigner. The employer is forcing him to work until the last day of contract and not allowing to take the unused leave. In addition, the employer is asking the person to take all the leave from the lock down period stating that work was not done properly. If not done so, the employer is threatening legal action. But the employee only has a few weeks left in the contract before he leaves the country. The employee is also concerned that the last month salary may not be paid stating that the quality of the work was not good. What can he possibly do?

Last edited by Ace1; 12.12.2020 at 10:33.
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Old 12.12.2020, 19:30
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Re: Forcing to work until last day

Either the employer makes the employee take the vacations (this is probably written on the termination letter) or the remaining days have to paid out to you at the end. Quality of work is completely unrelated.
So... get a lawyer.
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Old 12.12.2020, 19:56
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Re: Forcing to work until last day

Risking some wrath here, what is the real chance of not being paid?
If the risk is high, why work the last month.
As soon as the last paycheck clears, stop working.
Better to lose a couple of days rather than 4 weeks money.
There are some terrible employers out there.
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Old 13.12.2020, 23:09
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Re: Forcing to work until last day

I find it odd that the employer is threatening legal action against the employee when the employer is the one with all the control.
There are rules about vacation and also precedents in law with effectively prevent some situations. Like I said before, try to find some legal advice. Usually there are some free services offered.
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Old 13.12.2020, 23:34
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Re: Forcing to work until last day

If there is a provable breach of trust (like someone not doing their job while in home office) the employer has the right to fire him. He didn't do that, and he didn't communicate about any shortcomings either apparently.

Holidays have nothing to do with performance. The company can just pay them out along with the last check if they want him to work to the last day.
If they don't do that, he has to drag them in court, which is harder from abroad, and the boss is possibly banking on that.

I would try to find a professional legal service (maybe the union has some cheaper alternatives, this seems like a low wage job) immediately, before he leaves the country, and send the boss an adequately worded letter from the lawyer (if the lawyer thinks the employee is in the right of course, we don't know the full story). Letting him know that you know your rights and are ready for court can possibly fix things, a lawyer isn't free for the boss either.
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Old 14.12.2020, 01:57
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Re: Forcing to work until last day

I don't know if this is relevant to OP's case, and whether there might be maters of tranlation, but just in case, here goes.

If there were any periods during which the employee was away from work because of illness or accident, (that would be one way in which the work could not have been done properly) this absence, especially if long, could have caused the annual leave allowance to be reduced.
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Old 14.12.2020, 09:03
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Re: Forcing to work until last day

After reading your post about rules to follow for not getting tricked, it could be that you view your interactions with other parties in a negative light.

However... my gut feeling based on what you are writing, is that you are being wronged here. Your employer can not retroactively decide that working from home was vacation, nor can they decide to ignore vacation that you've earned. Additionaly, you have a highly protected right to receive your salary on time.

As others have said, I would highly recomend taking this to a lawyer as workers rights are quite strongly protected in Switzerland and any lawyer with expereince in employment law (Arbeitsrecht) in Switzerland should be able to quickly tell you what your options are and also write a letter to you. My guess is that you'll need between 2 and 3 hours for this, which is expensive, but it sounds like it would cost less than your employer 'tricking you' out of.

I don't know where you are based, but googling 'anwalt zürich arbeitsrecht' turned up quite a lot of law offices. Try your region, instead of Zürich and get dialing.
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Old 14.12.2020, 11:41
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Re: Forcing to work until last day

OP, do you have legal aid insurance ?
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Old 14.12.2020, 16:22
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Re: Forcing to work until last day

I can recommend Gabrielle Grether for legal advice on employment matters:

https://www.gmacg.com/
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Old 18.12.2020, 22:05
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Re: Forcing to work until last day

Thanks. When the money for the holidays should be paid after one leaves the job? Does membership in SUVA or other organization help to cover the legal cost? Is it possible to take up legal insurance for few months?
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Old 19.12.2020, 09:26
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Re: Forcing to work until last day

You need to clearly express what you actually are asking for. That is part of good negotiation skills.


If you can work out what you actually want (best case scenario) then also your 'bottom line' (compromise position) then we can probably help advise you on how to resolve the situation closest to what you want.


There are free legal services in Switzerland - if you (or your spouse) have time to go and line up and present your case, they can advise you.



I believe you can send a strongly worded letter if the employer requires you to work to the final day, and then after that refuses to pay your salary.



Personally, if they have told you you must work to the final day of the contract, I would, without antagonism, ask them to calculate and give you a statement for your final salary and accrued leave 6 weeks before the end of contract. Just say that it's necessary for you to ensure your tax etc and finalise your bills before you leave Switzerland.


It is also possible that you will apply with RAV. I would do that ASAP. Perhaps you can extend your stay? Maybe the situation changes ? And RAV will also scrutinise any agreements with your employer, and they will certainly 'throw the book of rules' at any employer that seems to have broken the rules!
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Old 19.12.2020, 16:32
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Re: Forcing to work until last day

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You need to clearly express what you actually are asking for. That is part of good negotiation skills.


If you can work out what you actually want (best case scenario) then also your 'bottom line' (compromise position) then we can probably help advise you on how to resolve the situation closest to what you want.


There are free legal services in Switzerland - if you (or your spouse) have time to go and line up and present your case, they can advise you.



I believe you can send a strongly worded letter if the employer requires you to work to the final day, and then after that refuses to pay your salary.



Personally, if they have told you you must work to the final day of the contract, I would, without antagonism, ask them to calculate and give you a statement for your final salary and accrued leave 6 weeks before the end of contract. Just say that it's necessary for you to ensure your tax etc and finalise your bills before you leave Switzerland.


It is also possible that you will apply with RAV. I would do that ASAP. Perhaps you can extend your stay? Maybe the situation changes ? And RAV will also scrutinise any agreements with your employer, and they will certainly 'throw the book of rules' at any employer that seems to have broken the rules!

Thanks. I already have all the salary and leave statement in the online system. I am watching it so that they don't put any random holidays on my name.


Already registered at RAV. They seem to have no influence over immigration authority or arbeitlossenkasse who may decline to pay unemployment benefit (see my other posts).
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Old 19.12.2020, 16:43
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Re: Forcing to work until last day

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Either the employer makes the employee take the vacations (this is probably written on the termination letter) or the remaining days have to paid out to you at the end. Quality of work is completely unrelated.
So... get a lawyer.

Yes. How long time do the employer have to pay for the unused leave after the contract ends? I guess one needs to go to lawyer after that.
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Old 14.01.2021, 19:14
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Re: Forcing to work until last day

Update: After finishing work, the employer was asked to pay for the unused leave. The same claims repeated i.e did not work properly etc. Now the employer is claiming that employee was working part time in other place while being employed there. This is nonsense.
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Old 14.01.2021, 20:00
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Re: Forcing to work until last day

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Yes. How long time do the employer have to pay for the unused leave after the contract ends? I guess one needs to go to lawyer after that.
Seek legal advice. Now. (well, tomorrow morning).
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Old 15.01.2021, 11:17
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Re: Forcing to work until last day

Tribunal des Prud'hommes (don't know it's swiss german equivalent) looks after this type of matter.

For Vaud:
https://www.vd.ch/toutes-les-autorit...de-prudhommes/
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