Dismissal is one of the most delicate moments in employment relationships. Under Swiss law, freedom of termination is broad — the employer is not required to justify their notice — but it is governed by a protective framework that sanctions abuses and protects employees in certain vulnerable situations. PBM Avocats assists employees and employers in Geneva and Lausanne in all situations relating to the termination of the employment contract: verifying the lawfulness of the dismissal, formal opposition, negotiating a separation agreement and, if necessary, legal action.
Ordinary Termination of the Contract: art. 335 to 335c CO
An open-ended employment contract may be terminated by either party by observing the statutory or contractual notice period (art. 335 CO). The principle of freedom of termination means that under Swiss law, the employer is not required to give reasons for their notice. This freedom distinguishes Swiss law from many European legal systems, where a real and serious ground is required. However, this freedom is not absolute: it is tempered by the provisions on wrongful dismissal and dismissal at inopportune times.
Notice must be given so as to reach the other party before the start of the notice period. In practice, the employer delivers a letter of dismissal, preferably by registered post or by hand delivery with signature. The employee may request the grounds for dismissal in writing within a reasonable time (art. 335 para. 2 CO); the employer is required to communicate them. This obligation to give reasons, although belated, allows the employee to assess whether the dismissal could be contested. PBM Avocats systematically analyses the stated grounds to determine whether wrongful dismissal may be invoked.
Wrongful Dismissal: art. 336 and 336a CO
Art. 336 CO defines the cases in which a dismissal is qualified as wrongful. The statutory list covers in particular: dismissal based on a personal characteristic of the employee unrelated to the employment (trade union membership, exercise of a political mandate, marital status, nationality, religion); dismissal in retaliation for the legitimate exercise of a right by the employee (referral to the labour inspectorate, filing a complaint, claiming wages owed); and dismissal aimed at preventing rights from vesting in favour of the employee (for example, dismissing an employee shortly before they acquire entitlement to a bonus or retirement).
The Federal Supreme Court has progressively enriched this list through its case law, recognising as wrongful dismissals that violate the principle of good faith, notably those based on trivial grounds, that occur after many years without any reproach, or that are manifestly disproportionate. A wrongful dismissal remains valid — the employee is dismissed — but gives rise to an indemnity of up to six months' gross salary (art. 336a CO). To preserve their rights, the employee must necessarily lodge a written opposition to the dismissal before the expiry of the notice period, then refer the matter to the competent court within 180 days of the end of the employment contract.
Immediate Dismissal for Good Cause: art. 337 CO
Either party may terminate the employment contract with immediate effect when circumstances objectively make continuation of the employment relationship until the expiry of the ordinary notice period intolerable (art. 337 para. 1 CO). No particular form is required for immediate termination, but clarity and documentation are essential in the event of subsequent dispute. The employer wishing to pronounce immediate dismissal must act without delay upon becoming aware of the relevant facts, at the risk of having the right of termination considered as lapsed by the courts.
The good cause recognised by Federal Supreme Court case law typically includes: theft or misappropriation of company assets, serious and intentional breach of contractual obligations, unfair competition during the contract, serious or repeated insubordination. In the event of dispute, the burden of proving good cause lies with the party invoking it. If the immediate dismissal pronounced by the employer is found unjustified, the employee is entitled to salary until the end of the ordinary notice period and, where applicable, to an indemnity for wrongful dismissal.
Protection Against Dismissal at Inopportune Times: art. 336c CO
Art. 336c CO establishes absolute protection against dismissal during certain periods that are particularly vulnerable for the employee: incapacity for work due to illness or accident not attributable to their fault (30, 90 or 180 days depending on seniority), pregnancy and sixteen weeks after delivery, compulsory military or civil service. Notice served during these periods is void by operation of law — without any opposition being necessary — and must be reissued after the end of the protection period.
This protection differs fundamentally from wrongful dismissal: nullity means that the contract is not terminated at all, not merely that an indemnity is owed. However, it is important to distinguish nullity for dismissal at an inopportune time from abuse of rights: an employee who themselves provokes the protected situation in order to shelter behind art. 336c CO may be met with a plea of abuse of rights. PBM Avocats precisely evaluates each client's situation and defines the best-adapted strategy.
Frequently Asked Questions on Dismissal
What are the statutory notice periods in Switzerland and can they be varied?
Art. 335c CO sets the statutory notice periods: one month during the first year of service, two months from the second to the ninth year, and three months from the tenth year, to the end of a month. These periods are mandatory minima in favour of the employee: an individual contract may provide for longer periods, but may not reduce the statutory periods to the detriment of the employee. A collective employment agreement (CEA) may also provide for different periods, provided it is not overall less favourable to the employee. Throughout the notice period, the contract remains in force and mutual obligations subsist.
Is my dismissal wrongful and what are my options?
Art. 336 CO defines cases of wrongful dismissal: dismissal motivated by a personal characteristic unrelated to the work (political opinion, trade union membership, nationality, marital status, etc.), dismissal in retaliation for the legitimate exercise of a right by the employee, dismissal aimed at preventing rights from vesting or frustrating claims that have already arisen. A wrongful dismissal remains legally valid but gives rise to an indemnity of up to six months' salary (art. 336a CO). To assert this right, the employee must lodge a written opposition to the dismissal before the end of the notice period (art. 336b CO), then refer the matter to the court within 180 days of the end of the contract.
What is immediate dismissal for good cause?
Art. 337 CO allows either party to terminate the contract with immediate effect, without observing a notice period, in the presence of good cause that objectively makes continuation of the contract until its normal expiry intolerable. On the employer's side, the following typically constitute good cause: acts of theft, misappropriation, serious fraud, repeated and persistent violation of instructions, repeated unjustified absences. The Federal Supreme Court applies a high standard: immediate termination is a last resort and cannot be used as a substitute for ordinary dismissal. In the event of unjustified immediate dismissal, the employee is entitled to damages corresponding to what they would have earned until the expiry of the ordinary notice period.
What is the protection against dismissal in the event of pregnancy or illness?
Art. 336c CO prohibits dismissal at inopportune times. During incapacity for work due to illness or accident not attributable to the employee, the protection is 30 days during the first year of service, 90 days from the second to the fifth year, and 180 days from the sixth year. During pregnancy and the sixteen weeks following delivery, the protection applies without time limit. A notice served at an inopportune time is void (art. 336c para. 2 CO) — not merely wrongful — and must be reissued after the end of the protection period. This nullity must be distinguished from abuse of rights, which only gives rise to an indemnity.
Am I entitled to a severance payment and in what cases?
Swiss law does not provide for a systematic severance payment as in certain countries. However, art. 339b CO grants a severance payment to employees aged over 50 who have completed at least 20 years of service with the same employer, the amount of which varies between two and eight months' salary according to art. 339c CO. In the event of wrongful dismissal, the indemnity may reach six months' salary (art. 336a CO). In the event of unjustified immediate dismissal, damages cover the loss of earnings until the end of the ordinary notice period. Additional indemnities may be provided for by individual contract or CEA.