Summary dismissal in accordance with Art. 337 CO
Normally, the employment contract ends either upon expiration (in the case of a fixed-term contract) or through an ordinary termination, in compliance with the corresponding notice period (in the case of a permanent contract). However, there are situations that make an extraordinary termination possible. In labor law, this is referred to as termination without notice in accordance with Art. 337 CO. This option can be used by either the employee or the employer. MyRight explains here what you as the employer must bear in mind if you summarily dismiss an employee.
Five points that you should take note of:
- Presence of a significant reason
Summary dismissal is allowed even if there is only one significant reason. If the trust between an employee and employer has been destroyed to such an extent that a continuation of the employment relationship until the expiration of the (fixed-term) contract or the end of the ordinary notice period is no longer reasonable, then a summary dismissal can be issued. This “significant reason” must be clear for both the person who is summarily dismissed as well as for those who are not directly affected (objective view).
- “Create” a significant reason by issuing a warning
Behavior in and of itself is not grounds for summary dismissal. As an employer, you can issue a warning in such cases. With the warning, you notify your employee that their behavior is inappropriate and will not be tolerated. You can inform the employee as part of the warning that repeated misconduct will result in the termination of the employment relationship (without notice). Your employees then have the chance to change their behavior. Depending on the breach, several warnings may be necessary to justify such a termination.
- Content-related requirements regarding warnings
A warning must be sufficiently specific and take the following aspects into account:
- Objection: Describe the specific circumstances of the objection
- Note: A clear statement that such misconduct will no longer be tolerated in the future
- Communication: It must be clearly communicated that repeated misconduct will result in summary dismissal
- Brief response time
If you wait too long after a serious breach by your employees (more than 2–3 days), then you lose your right to issue a summary dismissal. The reason: By waiting (too long), it is assumed that the breach was not serious enough for you to justify summary dismissal.
- What are the consequences of a summary dismissal by the employer?
The consequences for you as an employer vary depending on whether such a termination is justified or not.
- In the case of a justified summary dismissal, the employment relationship ends on the day the termination is issued. You are not obligated to continue with salary payments.
- In the case of an unjustified summary dismissal, the employment relationship also ends on the day the termination is issued. However, here you are obligated to make salary replacement payments, either until the end of the notice period or the end of the contractual term.