The employee sent a WhatsApp message to the head of human resources – who was her line manager: « O.________, you twat, fuck you [sic]. With all due respect to your incompetence ». This message reached all the [many] members of the WhatsApp group.

The employee said she acted as she did because she had just received the schedule for the following week, which called for her to work two nights in a row, even though she was on sick leave due to a burnout. She was dismissed with immediate effect.

Under Art. 337 of the Swiss Code of Obligations (CO), both the employer and the employee may terminate the contract immediately at any time for just cause (para. 1); just cause is defined as any circumstance which, in accordance with the rules of good faith, does not allow the person giving notice to be required to continue the employment relationship (para. 2).

As an exceptional measure, immediate termination for just cause must be accepted restrictively. It is not intended to sanction isolated behaviour or to provide the employer with satisfaction. The facts invoked in support of immediate dismissal must have led to the loss of the relationship of trust that forms the basis of the employment contract. Only a particularly serious breach can justify immediate dismissal. However, the seriousness of the misconduct alone does not trigger the application of art. 337 para. 1 CO; what is decisive is that the facts invoked in support of immediate dismissal must have led to the loss of the relationship of trust that forms the basis of the employment contract.

Insults directed against the employer’s person may constitute an attack on his personality and justify immediate dismissal if they reach a certain intensity, taking into account all the circumstances. A distinction must be made between insults made in a state of irritation and loss of control and those made with the intention of harming the employer. Furthermore, the assessment of the employer’s conduct cannot be set aside simply because the employee’s offence was committed in front of colleagues and customers. Accordingly, an employer who breaches art. 328 of the Swiss Code of Obligations is not entitled to rely on the consequences of that breach to justify immediate termination of the employment contract.

It is not disputed that the disputed comments made on « WhatsApp » must be qualified as insulting and constitute a breach of duty by the employee. However, the context must be taken into account. The employee was incapacitated for work due to burnout and had just received a schedule that provided for two night shifts in a row. For someone exhausted by their work, such news can lead to an explainable loss of control that is not part of an effort to harm the employer.

The fact that the abusive comments were communicated to the employer’s employees via WhatsApp does not change this. The impugned comments originated in a breach by the employer of its obligation to protect the employee’s health (art. 328 CO); however, an employer cannot rely on impugned comments for which it is – at least partly – responsible to justify immediate termination of the employment contract, even if the comments were communicated to other employees on WhatsApp.

Consequently, immediate termination is not justified.

(Arrêt de la Cour d’appel civile du Tribunal cantonal [VD] HC / 2023 / 54 du 16.02.2023)

Me Philippe Ehrenström, attorney, LLM