A was hired on a temporary basis by the Commune of X as an administrative assistant.

In a letter dated 21 March 2023, C informed the Commune that she had approached A. A had informed her that, according to her head of department, her permanent appointment was in jeopardy for various reasons. She wanted to be heard and claimed that she was a victim of mobbing. C therefore suggested that a «work climate analysis» (WCA ; analyse du climat de travail) be carried out.

In her WCA report, C concluded that A had shown intolerance towards the apprentice, that she had denigrated him, that she had made racist and discriminatory remarks and that she herself had not been the victim of any denigrating remarks. C concluded that it was « not advisable to confirm her in her position, but to proceed with her dismissal ». The Municipal Council terminated A’s provisional appointment.

Under art. 12 para. 3 of the loi cantonale du 28 juin 1995 sur le statut de la fonction publique (LSt; RS-NE 152.10), during the probationary period, either party may give notice of termination to the other by giving at least two months’ written notice for the end of a month. However, the notice must not be abusive within the meaning of Article 336 of the Swiss Code of Obligations.

The hiring authority has broad discretion in determining whether there are grounds for termination during the probationary period. Termination during the probationary period may be unfair, but such an assessment must be reserved for exceptional situations, taking into account the purpose of the probationary period.

In the present case the decision was based on a report drawn up by C after she had suggested that the municipality carry out a WCA. C was said to be the commune’s personne de confiance [i.e. an independent third party tasked with – among other issues – harrassment cases] but neither the commune’s general regulations nor the employee handbook mentioned the personne de confiance, let alone set out his or her mission, tasks and functioning.

The implementation of a WCA is to be assessed in this context. This tool is based on employees’ semi-confidential statements and is part of the amicable conflict management process, it is not a formal procedure. The WCA does not amount to an investigation.

The procedure that led to the report being issued is questionable. C contacted the local council on her own initiative to suggest that it carry out a work climate analysis and to offer her services after her meeting with A. This approach is questionable in terms of the duty of confidentiality of a personne de confiance. There is no trace in the file of a mandate from the local council specifying the scope of the task entrusted to her.

The measure that was implemented is more akin to a fact-finding investigation than a conflict management tool. A’s basic procedural and participation rights were ignored. A did not receive a summons informing her precisely of the purpose of the interview and of the possibility of being accompanied. She did not sign any minutes recording her statements. She was not able to take part in the other employees’ interviews and did not have access to their minutes.

The report does not make it possible to understand how and when the interviews took place, nor what questions were put to each of the employees.

For all these reasons, it must be concluded that the report lacked probative value and did not provide objective grounds for terminating the employment relationship.

(Arrêt de la Cour de droit public du Tribunal cantonal [NE] CDP.2023.245 du 18 octobre 2023)

Me Philippe Ehrenström, attorney, LLM