Within the framework of the employment contract, contractual freedom allows the parties to terminate the contract by adhering to notice periods and legal terms. However, a limit to the freedom to terminate is set by Article 336c of the Swiss Code of Obligations. This provision protects the employee from dismissal at inopportune times. Protection applies when a protective event such as pregnancy or illness occurs. In the case of illness, the worker's protection period depends on their length of service with the company. According to Article 336c paragraph 1 letter c: “After the probation period, the employer cannot terminate the employment contract during the first 30 days of a total or partial incapacity to work resulting from illness or accident for which the worker is not at fault. This period is extended to 90 days from the second to the fifth year of service and to 180 days from the sixth year of service onwards.”
The protection under Article 336c paragraph 2 of the Swiss Code of Obligations covers two scenarios:
If the termination of the employment contract is notified during a protective period, it is null and void. It must be renewed after the expiration of the protection period.
If the protective event occurs after the termination of the contract has been notified, the notice period is suspended. Upon the expiration of the protection period, the contract is extended until the next term. (Article 336c paragraph 3 CO)
The objective of Article 336c paragraph 2 CO is to provide the worker with a full notice period to allow them to seek other employment (Federal Supreme Court Decision 134 III 354 c. 3.1). Protection against dismissal at inopportune times is justified by the uncertainty regarding the extent and duration of the work incapacity, making it very unlikely for an incapacitated worker to be hired at the end of the ordinary notice period.
However, case law from the Federal Supreme Court nuances the protection under Article 336c by specifying that it does not apply in the case of an incapacity related to a specific job position (Federal Supreme Court Decision 4A_391/2016). The incapacity is considered limited to the workplace when the worker's treating physician or the employer's consulting physician certifies that the worker is no longer able to work in the current company but remains capable of working elsewhere. The worker can resume work but with another employer.
This jurisprudential rule can be problematic in some cases, as work incapacities limited to the workplace mainly concern psychological issues caused by working conditions (mobbing, sexual harassment, stress). Thus, a person who becomes incapable of working due to mobbing at their workplace would not benefit from the protection under Article 336c in case of dismissal. The Federal Supreme Court justifies its position based on some doctrinal opinions stating that a work incapacity limited to the job position does not warrant worker protection since the worker is able to seek suitable employment with another employer.
After being dismissed, a worker suffering from an incapacity limited to their workplace who wishes to benefit from the extension of the employment relationship under Article 336c paragraph 1 letter b should avoid registering for unemployment or applying for benefits. Such an initiative could be perceived as an admission of the incapacity being limited to the workplace and their ability to be employed elsewhere.
Regarding the burden of proof, it is up to the employee to prove their work incapacity, particularly through a medical certificate. However, it is the employer’s responsibility to demonstrate that this incapacity is limited to the workplace and not general.
In conclusion, a precise understanding of the legal nuances and careful management of proof of work incapacity are essential for workers wishing to benefit from the legal protections against dismissal at inopportune times.
If you would like more information or need our support, please do not hesitate to contact the Legal Consultation of Valentin (021 351 30 00 or www.cjdv.ch) so that we can assist you with your procedures.
Author: Ketsia Kundila Biuma
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