Author Lawyer Enrico Germano
The Federal Supreme Court held that the dismissal of four special forces soldiers, who had refused to be vaccinated against COVID-19, was justified and proportionate. According to Switzerland’s highest court, the vaccination was a preventive measure to preserve the soldiers’ availability. Those who choose a military career in a professional capacity are bound by a contract considered special with the state, with a duty of obedience to the service of the armed forces. The obligation to vaccinate does constitute an infringement of personal freedom, but only in a minor way.
The Federal Supreme Court’s press release of 23 March 2023 specified that the appeals of four former professional military officers of the Swiss Armed Forces Special Forces Command were dismissed by judgments of 22 February 2022 and their employment contracts were terminated in 2021 for refusing the Covid-19 vaccination. In view of the need to be able to deploy them abroad immediately (e.g. members of the Special Forces Command had taken part in the evacuation of Swiss nationals and diplomatic staff from Kabul, Afghanistan, in August 2021), the press release emphasised that the compulsory vaccination was proportionate and that the dismissals were therefore based on objectively sufficient grounds.
The Federal Supreme Court recalled that the employment relationship between the federal government and its personnel is governed by the Federal Act of 24 March 2000 on the Personnel of the Confederation (LPers) and the Ordinance of 3 July 2001 on the Personnel of the Confederation (OPers), which apply to the personnel of the federal administration (Art. 1 and 2 para. 1 let. a LPers). This includes professional and contracted military personnel (Art. 47 of the Federal Law of 3 February 1995 on the Armed Forces and Military Administration [LAAM]). According to Art. 10 para. 3 LPers, the employer may terminate a contract of indefinite duration if there are objectively sufficient grounds, in particular in the event of a breach of important legal or contractual obligations.
According to Art. 20 para. 1 LPers, the employee is obliged to diligently perform the work entrusted to him and to defend the legitimate interests of the Confederation and his employer. The employee therefore has a duty of management, which aims to fulfil public tasks, and a duty of loyalty, of which the duty of obedience is the corollary. As far as military personnel are concerned, this duty is also inherent in the structure and mission of the army, since Article 32, paragraph 2 of the LAAM stipulates that military personnel must obey their superiors in service-related matters.
The Federal Supreme Court, however, specified that the obligation imposed on the soldier, as a member of the military staff, to vaccinate against Covid-19, with the warning that a refusal would constitute a breach of his legal and contractual obligations and expose him to measures that could go as far as dismissal, constituted a violation of his fundamental rights, in particular his personal freedom guaranteed by Article 10(2) of the Federal Constitution. However, like any fundamental right, personal freedom could be restricted under the conditions set out in Article 36 paragraph 1 of the Federal Constitution; that is, the restriction must have a legal basis, be justified by a public interest and respect the principle of proportionality.
In conclusion, the Federal Supreme Court held that the lower authority had not abused its discretionary power in finding that the soldier’s refusal to vaccinate against Covid-19 prevented him from fulfilling his legal and contractual obligations and constituted a breach thereof.
1 Blick.ch, fr, 24 March 2023
2 Corriere del Ticino, 24 March 2023
3 Rts.ch-Swiss radio télévision, 29 April 2022
4 Medienmitteilung des Bundesgerichts, 23. März 2023, Urteile vom 22. Februar 2023 (8C_327/2022, 8C_340/2022, 8C_351/2022, 8C_362/2022) ; Kündigung wegen verweigerter Covid-19-Impfung: Beschwerden von vier Berufsmilitärs abgewiesen
5 Decisions of the Federal Supreme Court, ATF 8C_327.2022 du 22 février 2022, cifra 3.1.1; ATF 8C_351.2022 du 22 février 202, cifra 3.1.1
6 ATF 8C_327.2022 du 22 février 2022, cifra 3.2; ATF 8C_351.2022 du 22 février 202, cifra 3.2
7 ATF 8C_327.2022 du 22 février 2022, cifra 3.4.1; ATF 8C_351.2022 du 22 février 202, cifra 3.4.1
8 ATF 8C_327.2022 du 22 février 2022; ATF 8C_351.2022 du 22 février 2022