The appellant [the employee] considers that his immediate dismissal was unjustified. He criticises the Tribunal des prud’hommes for considering that he had breached his duty of loyalty by not calling his hierarchical superior after discovering that he had access to his electronic mailbox.

The employer and the employee may terminate the contract immediately at any time for just cause (art. 337 para. 1 CO).

Just cause includes all circumstances which, in accordance with the rules of good faith, do not allow the person giving notice to be required to continue the employment relationship (art. 337 para. 2 CO).

Immediate termination for just cause is an exceptional measure and must be accepted restrictively. Only a particularly serious breach can justify such a measure; if the breach is less serious, it can only lead to immediate termination if it has been repeated despite a warning (…). Breach is generally understood to mean the violation of an obligation arising from the employment contract, but other incidents may also justify such a measure. The breach must be objectively such as to destroy the relationship of trust essential to the employment contract or, at least, to affect it so profoundly that the continuation of the employment relationship cannot reasonably be required. Moreover, it must have actually led to such a result.

The judge is free to assess whether there are just grounds for instant dismissal (art. 337 para. 3 of the Swiss Code of Obligations). He applies the rules of law and equity (art. 4 CC). To this end, he will take into consideration all the elements of the particular case, in particular the position and responsibility of the employee, the type and duration of the contractual relationship, as well as the nature and extent of the breaches (…). The position of the employee, his function and the responsibilities entrusted to him may result in greater demands being made on his rigour and loyalty (BGE 130 III 28, para. 4.1; Federal Court ruling 4A_333/2023 of 23 February 2024).

In ATF 130 III 28, the Federal Court ruled that the employer was entitled to dismiss with immediate effect and without prior warning the employee, who had been entrusted with overseeing the company’s business during the illness of its director, and who had set up access, from his personal computer, to all of his boss’s electronic mail, without the latter’s knowledge, even though he knew that the director’s address was private. Thanks to this system, he had been able to enter his superior’s e-mail, without having to type in the latter’s user name or password, who was unaware of the diversion. (…)  In the case in question, the Federal Court held that neither the management task entrusted to the employee nor an overriding interest of the employer justified such a deviation. In this context, even if it had not been possible to prove that the employee had become aware of the private messages, the mere fact that he had allowed himself free access to them already infringed the confidentiality of communications and constituted a violation of the director’s private sphere. Such behaviour was likely to result in the loss of the relationship of trust that formed the basis of the employment contract, which allowed the employer to terminate it with immediate effect, without prior warning.

In a more recent ruling (Federal Court ruling 4A_333/2023 of 23 February 2024), the Federal Court also held that the employer was entitled to dismiss with immediate effect and without prior warning the employee who had accessed the school principal’s computer located on her desk, which was accessible to the school’s employees, and had carried out detailed investigations into the personal files of the school’s pupils and employees and consulted the principal’s personal and private documents. He then threatened to use confidential documents of current and former school staff against the interests of the headmistress, and made it known that he himself held these documents. He had also become aware of exchanges between the school principal and the tax authorities concerning her family situation, as well as private exchanges between her and her mother. In this case, the Federal Court held that it was irrelevant by what means or with what authorisation the employee had accessed the files, including sensitive or highly personal data of the headmistress, teachers or pupils, since in any event his behaviour went well beyond ‘unhealthy curiosity’, was inadmissible and of such a nature as to break the necessary bond of trust between the employer and him. The fact that access to the headmistress’ computer had been possible did not entitle the employee to venture onto it and extract information from it, retain it and threaten to use it against the school headmistress. Furthermore, the fact that the employer had had the clear intention of terminating him for several months was irrelevant.

In the present case, the appellant admitted that he had consulted his superior’s work-related e-mails; he disputed, however, that he had read the private e-mails, to which he did not deny having had access.

The appellant is wrong to claim that he was authorised to act in this way, on the grounds that his superior had delegated such access to him, which is disputed (…). It is clear from the explanations provided by the appellant that his superior had not expressly told him that, in addition to access to his calendar, he was also giving him access to his e-mail, so that the appellant could not assume that this was the case, especially as the e-mail also contained C______’s private correspondence. It must therefore be accepted that C, by authorising certain of his employees, including the appellant, to consult his calendar, was unaware that, by selecting an option in the computer system, they would also have access to his e-mail. It is also clear from the proceedings that the other employees of C______, even though they were authorised to consult his calendar in the same way as the appellant, did not feel entitled to access his messages and did not make use of the option allowing them to be read. Moreover, the appellant did not gain access to C______’s e-mail system “by chance”, but deliberately clicked on an option offered by the computer system to do so, even though his superior had only discussed access to his calendar. It will also be noted that while the practice of delegation was not exceptional, it was not systematic within the employer, so that the appellant cannot rely on it.

The appellant’s explanation that he thought he had the right to consult his superior’s e-mail in order to ‘harmonise his work within the department’ was not convincing. The appellant did not provide any useful explanation of the alleged need to ‘harmonise work’, nor did he establish that knowledge of certain of his superior’s emails would have been necessary for his own work. It also emerged from the file that he had transferred certain documents to his personal network, in particular documents concerning potential candidates for a position with the respondent, which clearly had no connection with his own work and did not concern him in any way. The explanation that he was in a state of stress at the time of these transfers does not justify his actions.

The appellant could not be considered to have believed, in good faith, that he had access to his superior’s email. In fact, it contained not only professional e-mails, but also private exchanges, in particular with his tax advisor, his wife and his children’s school. The confidential nature of these exchanges should, in any event, have raised doubts in the appellant’s mind about the delegation of messaging which, according to his argument, he believed he had. The Tribunal was therefore right to hold that fairness would have required the appellant to make his superior aware of the fact that he had access to his e-mail, in particular to messages concerning his private life, whether or not they had been consulted. However, not only did the appellant fail to do so, but on the contrary, he put the messages to which he had had access in ‘unread’ mode, which, given his general behaviour, suggests that he intended to hide his actions from his superior, said actions having continued for a period of some two years.

Nor can we agree with the appellant when he argues that his behaviour was understandable, since he was trying to find out why the company wanted to let him go. His intrusion into his superior’s mailbox predated the respondent’s intention to replace him by several months.

Moreover, the fact that the appellant had not made use of the information that had come to his knowledge by consulting his superior’s e-mail and that there had been no leakage of data did not detract from the fact that his behaviour was disloyal to his employer and likely to irreparably break the trust that had been placed in him. A simple warning would not have been likely to restore the trust that had been lost, given that the appellant held a managerial position in the company, which implied greater loyalty on his part than that expected of a mere employee.

Curiously, the appellant seems to consider that the fact that he learned of his superior’s messages ‘remotely’ makes his misconduct less serious. Admittedly, the appellant did not ‘break into’ C______’s messaging system. However, without being authorised to do so, he used an option offered by the computer system and persisted in his intrusive behaviour over a long period of time, without his superior’s knowledge. His misconduct must therefore be considered serious.

In view of the foregoing, the trial judges were right to consider that the appellant’s immediate dismissal was justified, given that he held a managerial position in the company, that he had a duty to set an example and that he had behaved disloyally, leading to an irremediable break in the bond of trust with the respondent.

The contested judgment will therefore be upheld on this point.

(CJ GE Chambre des prud’hommes CAPH/96/2024 of 25.11.2024, recital 4)

Me Philippe Ehrenström, avocat / attorney, LLM