Author: Lawyer Enrico Gemano
Pursuant to Art. 335 of the Swiss Code of Obligations (hereafter CO), an employment relationship for an unlimited period may be terminated by either party. The party giving notice of termination must state his reasons in writing if the other party so requests. Pursuant to Art. 335b CO, during the probationary period, the employment relationship can be terminated at any time with seven days’ notice. Pursuant to Art. 335c CO, after the probationary period the employment relationship can be terminated at the end of each month, in the first year of service at one month’s notice, at two months’ notice from the second to the ninth year of service, and at three months’ notice thereafter.
Unlike such unilateral termination by one of the parties (either employer or employee), with a consensual termination agreement, the company and its employee can agree by mutual consent on the termination of the employment relationship. In these cases, it is necessary to check the fulfilment of the formal requirements, in order to avoid legal disputes, which could drag the parties in Court1.
Usually, such consensual termination agreements do not require written form and may be concluded orally. Nevertheless, in view of the fact that both Swiss doctrine and jurisprudence stipulate that the declarations of will of both parties must be expressed clearly and unambiguously, the written form is always recommended.
The employer should give its employee a few days to reflect on the proposal made, in order to assess whether it best protects the employee’s rights. In any case, each situation of consensual termination agreement must be assessed individually.
In this regard, a ruling by the Civil Complaints Chamber of the Court of Appeal of the Canton of Ticino on 24 June 2014 had considered the consensual termination agreement to be null and void due to the lack of mutual concessions and the waiver of salary claims by the employee2.
Specifically, the employee explained that the interview with her employer had taken place without prior notice, that the employer had not offered the employee any alternative solutions within the company, and that the employer had not given her enough time to better understand what she was about to sign3. In fact, the employee should have been given sufficient time for reflection of a few days, which in the present case was not granted by the employer.
According to Art. 341 CO, the employee may not waive claims arising from mandatory provisions of law or the mandatory provisions of a collective employment contract, during the employment relationship and in the month following its termination: “the contravention of this rule entails the nullity of the waiver”4.
In the present case, the employee had renounced “the difference in salary for the months of termination (three months), the payment of the 13th month’s salary as well as the rights arising from the continuation of the contractual relationship“5.
2 CCR TA of 24.06.2014 – inc. 16.2013.27
3 CCR TA of 24.06.2014 – inc. 16.2013.27, number 3
4 CCR TA of 24.06.2014 – inc. 16.2013.27, number 5a
5 CCR TA of 24.06.2014 – inc. 16.2013.27, number 5c