Abusive Dismissal
Abusive dismissal (missbräuchliche Kündigung) occurs when an employer terminates an employment contract for a reason that violates Swiss public policy or basic fairness principles. Under the Code of Obligations (OR), dismissal is abusive if it targets protected characteristics (membership in a union, political opinion, religious belief, military service completion) or happens without genuine cause. The employee can claim damages and reinstatement within 30 days of notice.
Abusive dismissal is a termination that breaches OR Article 336 by targeting union membership, political opinion, religion, military service status, or other grounds that violate fundamental fairness.
In Switzerland, both federal law and cantonal courts recognize abusive dismissal claims. The burden is on the employee to prove the dismissal was arbitrary or targeted a protected ground—but once they do, you must justify your decision or face damages (typically one to six months' salary) and potential reinstatement.
When Abusive Dismissal Claims Arise
A claim typically surfaces after you terminate someone and they file a complaint with the RAV/ORP or contact a lawyer within 30 days. The employee argues the real reason was their union activity, political stance, religion, or another protected characteristic.
Claims also arise when dismissal happens immediately after a protected action—for example, terminating someone the day after they file a workplace safety complaint or return from military service. The timing itself raises suspicion in court.
- Union or worker representative membership or activity
- Political opinion or party affiliation expressed outside work
- Religious or philosophical conviction
- Completion of mandatory military or civil service
- Whistleblowing on legal violations or safety hazards
- Exercise of employee statutory rights (parental leave, time off for union duties)
Your Obligations as Employer
You must be able to document a legitimate, objective reason for dismissal—poor performance, redundancy, misconduct, or role elimination. If the employee claims the dismissal was abusive, you must prove the stated reason was genuine and unrelated to any protected ground.
Ensure your dismissal process is transparent. Issue written notice with grounds, keep performance records, and avoid terminating someone during vulnerable periods (pregnancy, military service, union office) unless there is documented cause unrelated to those statuses.
- Document the genuine business reason in writing before or immediately after dismissal
- Show consistent discipline patterns (if misconduct is cited, have records of prior warnings)
- Avoid terminating within 30 days of protected activity or status change
- Consider whether a warning or probation period was appropriate first
- Consult an employment lawyer if the employee is a union official or recently completed military service
- Keep payslips, timesheets, and performance reviews to support your decision
Most Common Mistake
Employers often dismiss someone verbally or informally, then scramble to invent documented reasons afterward. A termination notice must state the real reason clearly. If you later claim performance was poor but have no contemporaneous records, a court will assume the real motive was something else.
Second: reacting emotionally after an employee mentions union membership, files a safety complaint, or announces pregnancy. Even if you later cite poor performance, the suspicious timing will invite scrutiny. Courts look at whether your stated reason would have triggered dismissal in an identical case with a non-protected employee.
- Terminating without documented grounds and claiming cause after the fact
- Dismissing someone shortly after they exercise a legal right (union activity, parental leave request)
- Using vague language ('not a cultural fit', 'lack of commitment') without objective evidence
- Failing to apply the same discipline standard to employees in similar situations
- Proceeding with dismissal when a cantonal law (e.g., Basel-Stadt, Geneva) adds extra protections
- Not consulting a lawyer before terminating someone in a protected category (pregnant, union official, recent military service)
Frequently asked questions
- Can I dismiss someone during their probation period without risk of an abusive dismissal claim?
- No. OR Article 336 applies during probation too. You must still have an objective reason and cannot target a protected ground. Probation shortens the notice period but does not eliminate the duty to avoid arbitrariness.
- What happens if a court finds the dismissal abusive?
- The employee can claim damages (typically one to six months' gross salary, depending on tenure and the court's view of severity) and request reinstatement. You must pay damages; reinstatement is less common but possible. Either way, legal costs and management time mount quickly.
- Does my reason have to be performance-related to avoid an abusive dismissal claim?
- No. Legitimate reasons include redundancy, role elimination, business restructuring, or serious misconduct. The key is that the reason must be genuine, documented, and applied consistently—and not a pretext for targeting a protected characteristic.
General information for Swiss employers, not legal advice. Have a lawyer confirm anything with legal consequences.