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Old 16.08.2021, 10:29
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Bonus contract - is this even legal?

I recently moved back to Switzerland after being relocated within the company i have worked for in another country. The job is the same, but with a better salary and better bonus.

The employment contract was ok. No pitfalls but an overly excessive non-compete clause which my I immediately knew was illegal, thus wouldn't be binding in the case of any dispute.

The job has a good base salary, and very nice bonus on top. The bonus is KPI based, and is purely based on objective measures like growth in revenue, sales margin, etc., and has a seperate contract. I was just given the seperate contract, and I'm absolutely sure this must be illegal.

I looked up the general applicable law regarding bonus, and my understanding is that there are severa ways to differ a bonus from being "gratifikation" and "arbeitslohn". The first being for example a christmas bonus which is given if the company thinks that you performed well and the company is doing well, so a subjective opinion. And a bonus being "arbeitslohn" should there be an objective measure, in my case if you sell n times X, you will be awarded n times specific amount of money.

My contract is the latter, where the bonus is subjective to my performance and the specific measurements. So arbeitslohn, right?

The contract has some pretty ed clauses, including a "sine qua non" clause stating that if i leave the company before the bonus is paid out, I don't get anything. I know this is normal for finance, but since this isn't just a yearly gratification of e.g. 10.000 CHF, but in my case 50.000 CHF based on objective goals, I am quite sure this is illegal, and the least i should get paid what I have earned throughout the year.

The contract also says that they retain the right to lower the bonus relatively to the days I am out e.g. because of sick leave.

The company also states that it does pay out the bonus in advance in july, but if I were to leave the company between July and the final bonus is paid out, the have the right to get my advance bonus back, and too deduct it from my last payslips. Is this even legal?

Again, I know this isn't uncommon for a gratification bonus, but as far as i see, this is not.

Any advice on how to move forward with this? Can you recommend any legal experts to look through my contract and give me specific points on what needs to be changed?
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Old 16.08.2021, 10:39
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Re: Bonus contract - is this even legal?

Sounds perfectly legal.

But if you don't like the contract, simply don't sign it.

Tom
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Old 16.08.2021, 11:11
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Re: Bonus contract - is this even legal?

Seems normal that a bonus payment is dependent on KPI´s. You need to reach some targets to get something extra and those can be related to the company´s performance as well.
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Old 16.08.2021, 11:29
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Re: Bonus contract - is this even legal?

If in doubt, pay a lawyer. They'll tell you. (Some might just tell you what you want to here - avoid those).
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Old 16.08.2021, 11:56
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Re: Bonus contract - is this even legal?

It sounds like a cheap attitude from the company side. Like, actual working days do not count if you quit before the end of the year, but they do count if you are on sick leave. So it's not consistent and not even fully based on KPI.

I suggest you double-check not just these clauses but also the KPI mechanism as well, trying to read between the lines. If the goal is to minimize the bonuses (understandably it is, but there are different levels of pushing it) they have a whole set of tricks to alter KPI regardless of your actual achievements.
Any chance you could get any more information, e.g. from another employee in a similar position?

In any case, if in doubt, hope for the best but prepare for the worst. Would you still be (financially, morally) ok with a risible bonus at the end of the year?
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