Introduction

Art. 336 para. 1 let. d of the Swiss Code of Obligations (CO), which deals with retaliatory dismissal, provides that dismissal is unfair if it is given because the other party is asserting claims arising from the employment contract in good faith. For this provision to apply, the other party must have had the will to exercise a right. It is also necessary for the other party to have acted in good faith, which is presumed (art. 3 para. 1 CC), even if the claim did not in fact exist; this clause must not allow an employee to block a notice of termination that is in itself admissible or to assert claims that are totally unjustified.

The claims made by the employee must also have played a causal role in the employer’s decision to dismiss him. Thus, the fact that the employee makes a claim in good faith under the employment contract does not necessarily mean that the employer’s subsequent dismissal is unfair. However, the employee’s claim must be the cause of the dismissal, and at the very least it must be the decisive reason for the dismissal. The closer the two events are in time, the easier it will be to infer that the dismissal was unfair.

Examples

An employee was dismissed shortly after reporting accounting irregularities internally. The report constituted a protected act, but the employer justified the dismissal on the grounds of documented professional shortcomings. The causal link between the report and the dismissal was therefore not sufficiently established.

An employee was dismissed after taking part in a strike demanding better pay conditions. A  court recognised the retaliatory nature of the dismissal, emphasising the absence of any objective reason for the dismissal and the obvious causal link between the union action and the employer’s decision.

An employee was dismissed after lodging a complaint of psychological harassment. Although the harassment was partially confirmed, the court ruled that the dismissal was motivated by plausible economic reasons, and not by the complaint in question. Thus, the conditions for retaliation were not met.

An employee was dismissed immediately after refusing to perform a task that he considered to be against the law. The court concluded that the refusal was legitimate and protected by law, and that the employer’s failure to provide a reasonable justification confirmed that the dismissal was a reprisal.

An employee lost her job after denouncing working conditions that did not comply with internal regulations. The court ruled that, although the whistleblowing was protected, the employer had provided solid evidence justifying a restructuring unrelated to the whistleblowing.

An employee was dismissed after submitting a collective petition to improve safety conditions. The court ruled that the dismissal violated the principle of good faith, as there was no valid justification other than the petition.

Conclusion

The case law reveals a rigorous but nuanced application of the criteria for retaliatory dismissal by the Swiss courts. While some cases demonstrate a clear recognition of retaliation, particularly where the absence of an objective motive is manifest, others illustrate the difficulty for the employee of proving the direct causal link.

Employees must therefore be aware of the importance of rigorously documenting the circumstances surrounding an allegedly retaliatory dismissal. For employers, transparency and documentation of the reasons for dismissal are crucial to avoid litigation. This analysis highlights the balance sought by Swiss law between protecting employees‘ rights and preserving employers’ economic freedom.

Me Philippe Ehrenström, attorney, LLM