Is my employer allowed to insult me during the process of the dismissal?

Let’s start with the following example: One morning an employee arrives late to the office without an excuse. The employer reacts very angrily and expresses various insults in front of all the staff members. He sents the worker at home. The next day he is dismissed and even in the dismissal further insults are added. As an employee is it reasonable to expose myself to such a behaviour?

First of all, it must be noted that in Switzerland there is freedom of dismissal. This means that there are no fixed conditions for dismissal and it can even be pronounced for no reason. This is one of the most attractive strengths of the liberal Swiss labour market. But on the other hand, the freedom of dismissal is not unlimited. A dismissal must not be abusive. It’s important to understand that an abusive dismissal is still valid, but it has financial consequences for the employer. But when is a dismissal abusive?

The swiss Code of Obligations states in Art. 336  the following reasons in which the termination is abusive. However, this is not exhaustive; comparable reasons may also be included.

These are:

- termination due to a personal characteristic that are not related to the employment relationship

- termination due to the exercise of a constitutional right

- termination in order to prevent the creation of a contractual claim

- the termination due to the assertion of a contractual claim

- dismissal for compulsory military service

- dismissal for the exercise of trade union activity

- etc.

So, if for example someone is dismissed because of his ethnic origin, this can be abusive, provided that this characteristic has no connection with the employment relationship and does not affect the company.

In addition, the manner in which the dismissal is issued can also violate the prohibition of abuse. If offensive or hurtful statements are made in the presence of third parties, this indicates a prohibited violation of personality. Therefore, a termination issued under these circumstances may be abusive.

Art. 328 OR imposes a so-called duty of care on the employer, obligating him to protect some interests of the employee. Protected interests include sexual and intellectual integrity, personal and professional honour and reputation in the company. This applies both during the employment relationship and also during the process of dismissal.

Of course, the employer may inform his company of the departure of an employee. If, however, unnecessarily degrading or even false facts are expressed, these statements violate the duty of care. Such actions are even worse if they are leaked to the press or in the presence of exaternal third parties, who do not work at the company.

If a dismissal is abusive, this can have serious consequences for the employer. In such a case, the judge may determine compensation in favour of the employee. This amount may not exceed six months' salary and must be paid in full without deduction of social security benefits.

If the employee wants to assert the abusive termination, he must first appeal an objection against the termination with the employer within the period of notice and then, in accordance with Art. 336a of the Swiss Code of Obligations, bring an action within 180 days of the termination.

In addition, other expenses may arise on the employers account, such as satisfaction payments due to the protection of the personality, which is stated in Art. 28 of the Swiss Civil Code. In case of unnecessary and derogatory insults and remarks to third parties and staff, the Federal Supreme Court has confirmed such satisfaction claims. Furthermore, offensive statements may also be relevant under criminal law. In art. 177 Swiss Criminal Code the fact of offensive insult is regulated. It can be punished on charge with a fine.