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Old 05.03.2021, 13:39
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Nightmare with Swiss employer - unpaid salaries, wrongful changin of contracts etc.

So, I have posted before here asking about what to do and now things have seriously escalated. I wanted to share this to possibly help other people in a similar situation and possibly get some advice. I am already working with a lawyer and will work with them from now on but would appreciate your thoughts as well.

Here is the pretence:
- Working for a young Sagl company currently looking for investments. (so probably low on cash)
- Working in Ticino
- G-permit resident in Italy.

I will first list the problems that have arisen and the timing for them.

- First of all my salary since day one Feb 2020 was always late but usually paid within 2 weeks or so I didn't make it a big deal. I was happy with my salary and everyone knows the current job market.

- There was one invoice that was late from the time I was working as a consultant for them on which we eventually agreed he would pay with my normal salary. As I was living in Germany at the time, they then paid the invoice around June 2020, but not only deducted the swiss contributions but also withheld 42% of the salary "in case the German authorities try to claim it back"

- In October-November the bigger problems started. First, my employer was 25 days late with my October salary and it started being painful. Then he suddenly paid but only 80% of the salary approximately in total. Then afterwards he sent an email that due to government regulations he can only pay 80% for the October salary and ongoing. He said I can use the backtracked reduced days in December so I only worked 2 days a week for the month. I reluctantly agreed, as I only had one month notice period and I couldn't manage if I would be terminated.

- The next salary was also paid about 10 days late and was the same 80%.

- He didnt share other than the October salary slip despite many requests and after looking at the calculations, I was only paid 20% of the salary by the lawyer and the government paid about the rest adding up to 80% in total. This seemed odd... as I was working 80% and according to the short work I should be paid 100% of the worked hours by the company and 80% of loss of income by the government. - social conributions.

- Then in December and January I was not paid at all and we were going into February. I gave him 2 separate written warnings that if he doesn't pay, I will need to seek other means of collecting the salary. His response was that the government has not paid him and he cannot pay us before they pay.

- Finally on the advice of a lawyer, I initiated a "domanda esenzione" (I am working in Ticino, Italian area)

- When he received it, he sent me a WhatsApp that due to my actions they have decided to terminate my contract and they will not pay my December of January salaries and will reject my request. They would only pay my February Salary, which they finally did on the second of Feb.

- In the meantime, I had prepared a letter by my lawyer saying that if he does not pay the outstanding salaries due, I will stop working and still expect full pay for the notice period.

- Then he came back with saying that due to me "terminating my contract and not working" he has informed the cantone that I have diluted the contract and they will not pay my remaining salaries. Also, all communication now has to be in Italian or I will need to pay for the translation costs.

- Now on top of everything, I got covid yesterday and said I cannot return the company stuff back to the office which he responded to by saying total irresponsible behaviour. Funnily enough when I have not broken any covid regulations and he has been the one forcing us to come to the office despite the swiss government saying we must work from home, which we easily can as I work on my laptop and phone.

- Finally today, there was some small damage on the corner of my PC, so he ent an email with pictures saying that he will seek compensation for braking the company property and not informing them without delay.

After all, this, as I'm of course financially screwed and can barely manage, I went to seek unemployment support, and they said because I "diluted the contract" which I haven't, I can't claim it.

Please, if anyone can help in any way, all advice is welcome. also critical feedback in case you think I have acted wrong in some way. I have tried to only take steps according to the book and always was open in my communication with the employer that I am willing to come to a mutually beneficial solution.

Any experience on how long these types of legal proceedings might take?

I have a wife and daughter dependant on me and have to figure out my next move in the middle of lockdown and whilst having Covid.

Thank you and I hope the rest of you are doing better!
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Old 05.03.2021, 13:49
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Re: Nightmare with Swiss employer - unpaid salaries, wrongful changin of contracts et

What does "diluted the contract" mean?

(do you have it in Italian?)

Tom
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Old 05.03.2021, 14:08
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Re: Nightmare with Swiss employer - unpaid salaries, wrongful changin of contracts et

It wasnt those words exactly. This is whst they wrote. "La decisione di interrompere immediatamente il periodo di disdetta è prettamente arbitraria e possiamo solo prendere atto di ciò, e comunicare la decisione alle parti cantonali e sociali di competenza e procedere con la chiusura del rapporto, inclusa l’emissione dei documenti necessari."

I replied in seveeral emails, that i have not termintated the contract. I have stopped working due to not recieving my salaries and expect full compensation and will continue working as soon as I am paid.
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Old 05.03.2021, 14:13
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Re: Nightmare with Swiss employer - unpaid salaries, wrongful changin of contracts et

Sorry for the typos, my i wrote this on my mobile. Also one correction " I was only paid 20% of the salary by the lawyer" I mean paid by the employer.
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Old 05.03.2021, 14:13
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Re: Nightmare with Swiss employer - unpaid salaries, wrongful changin of contracts et

Hope you recover soon.

My first impression is that you mentioned a lawyer more than once. Do you have a cost control strategy for the lawyer? Are you updated regularly on the incurred costs? Or is the lawyer charging a percentage of the recovered money? Maybe you have legal insurance and no worries at all.

I'm just pointing at an issue that must not be overlooked. It's too easy to overlook something important when you have such a cognitive and emotional load.

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- He didnt share other than the October salary slip despite many requests

- Then in December and January I was not paid at all and we were going into February. I gave him 2 separate written warnings that if he doesn't pay, I will need to seek other means of collecting the salary. His response was that the government has not paid him and he cannot pay us before they pay.

- Finally on the advice of a lawyer, I initiated a "domanda esenzione" (I am working in Ticino, Italian area)

- When he received it, he sent me a WhatsApp that due to my actions they have decided to terminate my contract and they will not pay my December of January salaries and will reject my request. They would only pay my February Salary, which they finally did on the second of Feb.

- In the meantime, I had prepared a letter by my lawyer saying that if he does not pay the outstanding salaries due, I will stop working and still expect full pay for the notice period.

- Then he came back with saying that due to me "terminating my contract and not working" he has informed the cantone that I have diluted the contract and they will not pay my remaining salaries.
From the short description, your employer doesn't sound like a lawyer or accountant that knows the law perfectly to know where to break it and leave unharmed. Not producing salary slip, using whatsapp, bluffing about the cantone......sounds like a not-so-bright and quite emotional person. My armchair expert opinion would be just keep your lawyer under control and be patient, emotional people are not good at legal disputes.
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Old 05.03.2021, 14:18
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Re: Nightmare with Swiss employer - unpaid salaries, wrongful changin of contracts et

Alas stopping to work is terminating the contract, i.e. from their point ot view you resigned, which is what they told to the cantonal offices.

Also, there is the problem that cross-border workers don't get Swiss unemployment, they get Italian unemployment.

Sounds like there's not much you can do.

What does the lawyer say?

Tom
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Old 05.03.2021, 14:18
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Re: Nightmare with Swiss employer - unpaid salaries, wrongful changin of contracts et

Deepl suggests a voluntary ending of the contract. And it's not a pretence - it's a presentation. Or in this case as story.

Sounds like you're well out of it. You've carefully documented the abuses, so really I can't see they've got a leg to stand on. Furthermore, by insisting on 80% working while claiming 80% from the government is fraud.

If I were in your position, I might well start legal action. They MUST pay for months worked.

You do not have to pay for the computer. It is an asset of the company, and as an employee you are indemnified against damage unless they can demonstrate you were negligent. With the damage as you describe, I doubt that they can prove it.

I'd suggest you only contact them through your lawyer. Not direct.
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Old 05.03.2021, 14:22
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Re: Nightmare with Swiss employer - unpaid salaries, wrongful changin of contracts et

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bluffing about the canton
Why do you think it's a bluff?

It's a perfectly normal thing to do.

Tom
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Old 05.03.2021, 14:22
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Re: Nightmare with Swiss employer - unpaid salaries, wrongful changin of contracts et

Thanks for the words of encouragement and tips! The lawyer I have used is under check and I will keep doing so.
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Old 05.03.2021, 14:28
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Re: Nightmare with Swiss employer - unpaid salaries, wrongful changin of contracts et

He says if they dont pay my salary, it is not considered me ending the contract.
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Old 05.03.2021, 14:36
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Re: Nightmare with Swiss employer - unpaid salaries, wrongful changin of contracts et

sorry to hear that, hope you can recover soon and I hope you will be able to get previous salaries.
I only have one question: if you are not resident in CH, why should you be eligible for Swiss unemployment benefit?
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Old 05.03.2021, 15:25
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Re: Nightmare with Swiss employer - unpaid salaries, wrongful changin of contracts et

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sorry to hear that, hope you can recover soon and I hope you will be able to get previous salaries.
I only have one question: if you are not resident in CH, why should you be eligible for Swiss unemployment benefit?

I am not, and dont expect to be. I fall under the italian unemployment benefit scheme
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Old 05.03.2021, 17:03
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Re: Nightmare with Swiss employer - unpaid salaries, wrongful changin of contracts et

I‘m sorry to say that from bitter experience, when an employer starts paying late or not at all, the company is bankrupt. You may well win in court, but if the guy/company has no money you‘ll see nothing.

Don‘t depend on what you see - you can bet all assets have been protected or sold. With the wonder of hindsight you should have walked away at the first late payment.

Walk away and think of it as a story to tell your grandchildren one day. Or post in the future on a forum like this...
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Old 05.03.2021, 17:20
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Re: Nightmare with Swiss employer - unpaid salaries, wrongful changin of contracts et

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He says if they dont pay my salary, it is not considered me ending the contract.
That is normally the case. It's about as serious a breach of contract as you can get.
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Old 05.03.2021, 18:48
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Re: Nightmare with Swiss employer - unpaid salaries, wrongful changin of contracts et

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I‘m sorry to say that from bitter experience, when an employer starts paying late or not at all, the company is bankrupt. You may well win in court, but if the guy/company has no money you‘ll see nothing.

Don‘t depend on what you see - you can bet all assets have been protected or sold. With the wonder of hindsight you should have walked away at the first late payment.

Walk away and think of it as a story to tell your grandchildren one day. Or post in the future on a forum like this...

I agree that might well be the case, but to get anything out of it, i need to push tthem to bankrupcy so the the government 4 month insurance kicks in. Also, at least I get the pleasure of knowing that this a****** cant do it to anyone else.
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Old 05.03.2021, 20:05
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Re: Nightmare with Swiss employer - unpaid salaries, wrongful changin of contracts et

Sorry to hear about your situation.

Agreed, you should let you lawyer handle it.

However, I would totally give a call to the "Ufficio del lavoro" in Bellinzona explaining the situation (if not already done). As somebody mentioned, they will look into it and, hopefully, prevent this to happen to anybody else.

Do they have other employees?
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Old 05.03.2021, 23:01
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Re: Nightmare with Swiss employer - unpaid salaries, wrongful changin of contracts et

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That is normally the case. It's about as serious a breach of contract as you can get.
See here https://www.englishforum.ch/3282536-post7.html
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Old 05.03.2021, 23:42
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Re: Nightmare with Swiss employer - unpaid salaries, wrongful changin of contracts et

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I‘m sorry to say that from bitter experience, when an employer starts paying late or not at all, the company is bankrupt. You may well win in court, but if the guy/company has no money you‘ll see nothing.

Don‘t depend on what you see - you can bet all assets have been protected or sold. With the wonder of hindsight you should have walked away at the first late payment.

Walk away and think of it as a story to tell your grandchildren one day. Or post in the future on a forum like this...
From what it sounds like the boss may be spending some time at the Federal Councils pleasure though, so OP could opt for a Pyrrhic victory.
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Old 06.03.2021, 00:33
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Re: Nightmare with Swiss employer - unpaid salaries, wrongful changin of contracts et

I tend to disagree with getting a lawyer at this point, that's a cost OP wants to postpone until all options that are free have been exhausted.

Usually, your "ArbeitsAmt" or "WirtschaftsAmt" (ufficio dell'ispettorato del lavoro, alternatively dipartimento delle finanze e dell'economia) or similar will advise you on what your options are, what to do and how to proceed. Now, the ispettorato isn't the body you probably want to contact, but they're close enough to provide reliable info and solid advice, and to refer you to the competent body where necessary. Contrary to a lawyer they work for free for you (unless they inform you otherwise, but they're public employees thus don't see you as their milk cow).

There's also the fact that up to three monthly salaries are insured ("InsolvenzEntschädigung", indennita per insolvenza). This insurance kicks in if the employer goes bankrupt, or is otherwise unable to pay. However that will probably hinge on the decision who the culprit is (the case seems pretty clear, but that doesn't mean much until there's a binding verdict, and there's always the possibility that some formality has been overlooked).
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Old 06.03.2021, 16:00
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Re: Nightmare with Swiss employer - unpaid salaries, wrongful changin of contracts et

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I tend to disagree with getting a lawyer at this point, that's a cost OP wants to postpone until all options that are free have been exhausted.

Usually, your "ArbeitsAmt" or "WirtschaftsAmt" (ufficio dell'ispettorato del lavoro, alternatively dipartimento delle finanze e dell'economia) or similar will advise you on what your options are, what to do and how to proceed. Now, the ispettorato isn't the body you probably want to contact, but they're close enough to provide reliable info and solid advice, and to refer you to the competent body where necessary. Contrary to a lawyer they work for free for you (unless they inform you otherwise, but they're public employees thus don't see you as their milk cow).

There's also the fact that up to three monthly salaries are insured ("InsolvenzEntschädigung", indennita per insolvenza). This insurance kicks in if the employer goes bankrupt, or is otherwise unable to pay. However that will probably hinge on the decision who the culprit is (the case seems pretty clear, but that doesn't mean much until there's a binding verdict, and there's always the possibility that some formality has been overlooked).
I would love to do it myself, but as I dont speak Italian, and dont live in Switzerland, I often run quickly into a wall.

Would anyone be able to share, how long this kind of process could take?
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