It is obviously difficult to give advice that would apply to all situations and to all people indiscriminately in case of a dispute with an employer in Switzerland.
Conflicts relating to employment contracts depend on the parties involved, their relationship, but also on the issues raised (dismissal, overtime, mobbing, etc.) and they involve very different areas of law (private or public law, collective law, insurance, pensions, taxation, protection of the personality, data protection, etc.).
That being said, after more than twenty years of practice, I believe it is possible to outline a few general rules of conduct to enable the litigant to find his or her way at the start of a dispute with his or her employer. I hope that some of them will be useful to those who read these lines, knowing that they cannot be comprehensive.
Rule 1: Keep calm. There is no time when it is more important to keep your nerves under control, and when it is so difficult to do so. The situation is not unlike some marital separations. You will have to control yourself, however, because a conflict with the employer means that sooner or later (and often much sooner than you think) you will have to make difficult and future-oriented decisions. Should you ask for an interim work certificate? Should you challenge an assessment? Do you claim compensation that you feel you are owed? Etc. etc. It is therefore very easy to take advantage of the stress and emotion felt by the employee to get him to accept things that would not necessarily be in his or her favour.
Rule 2: Get help. The issues to be resolved in a dispute with the employer can be complex, involving delicate connections between different areas of law. It is often thought that it is difficult and expensive to find professional advice and assistance. This is not the case. Legal advice is readily available from trade unions, professional associations, cantonal law offices and (also) from lawyers with expertise in the field [including the author]. All you have to do is ask. And very often, a one-off consultation or advice can help to clarify matters and move forward, not to mention the possibility of more sustained assistance or follow-up. Should you have to go to court, you also require judicial assistance regarding lawyer’s fees and court’s costs.
Rule 3: Talk to your general practioner. Let’s be clear: situations of professional conflict are extremely stressful. It is therefore not uncommon for this to result in various physical or psychological problems, of varying intensity and severity, which one chooses to deal with (or not). The preservation of one’s own health is therefore an essential aspect, and must be the subject of a responsible and constructive dialogue with one’s own GP. It is therefore important to listen to oneself and to know how not to put oneself in danger. That being said, we must be clear: a medical problem is a medical problem, not a manoeuvre or tactic in a legal labor dispute.
Rule 4: Don’t dilly-dally. Avoid procrastination at all costs! Time rarely makes things better. In general, if there is a conflict situation, it is because there is a past history, difficult or tense relations between certain people, recurrent difficulties, etc. It is therefore often illusory to think that a conflict situation can be avoided. It is therefore often illusory to think that doing nothing will improve things. In addition, the more time that passes in this type of situation, the more difficult it is to negotiate an amicable ‘departure’, a reclassification, etc. There is therefore no point in waiting for a dismissal to happen before seeking advice and taking action.
Rule 5: Prioritise. This is one of the most difficult things to do, but one of the most necessary. What do you really want to achieve in the current situation? Keep your job? Get transferred? Why not, but it has to be possible, and expectations are often unreasonable in this area. Breaking with the employer in a negotiated way? This is often more useful and effective, but you have to know how to do it. And what to claim? People often think of compensation, whereas the employment certificate is probably the main issue in any termination of the employment relationship. In short, in a relatively short space of time, and without waiting for events and the employer’s own decisions to limit your choices, you will have to arbitrate between several possibilities, and sometimes know how to choose the least bad.
Rule no. 6: Don’t get the wrong vision or tempo. Very often, we get stuck on past episodes when the employer has already moved on to the next stage. You must not get the time frame wrong: when the employer is at the point of making damaging assessments, it is precisely because the services you rendered two years ago have been forgotten or the laurels you were awarded for such and such a file or case have faded. You have to be able to move very quickly in certain situations to find a way out.
Rule 7: Be bold. Nearly a quarter of a century ago, when the author of these lines was starting to practise law, it could be said that in certain professions litigation could have undesirable effects on the reputation or employability of those concerned. Today, the situation has obviously changed. Litigation has become more common, and employers know and are aware of the implications. Because Swiss labour law cannot be said to be particularly protective for the employées, you should not hesitate to claim what you are entitled to.
Rule 8: Don’t get the wrong perspective. A labour dispute is a labour dispute. The labour judge is not a psychologist or a psychiatrist, nor is he or she Saint Louis under the oak tree. It will not be a question of helping you to « mourn » or some other psychologising nonsense. It will deal with practical issues regarding dismissal, overtime, holiday entitlement, bonuses, etc.
And above all, good luck (you will need it)!
Me Philippe Ehrenström, attorney, LLM, CAS, Geveva & Onnens (VD)
Mais cher Maître que vous arrive t’il ?
Un petit AVC ou alors vous avez le syndrome « Alain Berset » qui, subitement, se met à discourir en anglais. D’ailleurs, vous remarquerez que le bon peuple Suisse n’a même pas cillé …
Belle journée cher Maître
Votre fervante lectrice
Je vous rassure, ni AVC ni syndrome « Berset »…. Belle journée