EMPLOYMENT LAW: DUTIES OF PARTIES

Groundwork for a constructive partnership

An employment contract is not limited to imposing an obligation of performance from the employee and a salary payment from the employer. During the contractual relationship, parties must also observe additional duties, in order to facilitate their relationship and lay the foundations of a respectful and fruitful cooperation.

Employer’s duties and employee’s remedies

The employer’s main duty is to pay the agreed remuneration (art. 323 §1 CO). If not agreed otherwise by the parties, he/she has to pay at the end of every relevant month. If the employer doesn’t fulfill his/her obligation, the employee has different actions at his/her disposal. The employee may:

suspend his/her work performance in order to obtain a positive reaction from the employer;
seek enforcement of his/her salary claim before the court and ask for damages;

terminate the employment contract immediately and without notice even in the case of a simple insolvency of the employer (unless the employer grants the employee some salary securities within a reasonable period of time).

If not otherwise agreed by the parties, the employer has to provide the necessary working tools to the employee.

The employer also has to protect the employee’s personhood (ie. duty of care). This duty consists in taking actions in order to prevent and put a stop to any type of harm against the employee’s life, physical and mental integrity, privacy, health and security. Fast-paced and effective actions can be taken by the employee in case the employer doesn’t comply with his/her duty.

Employee’s duties and employer’s remedies

The employee’s primary duty is to personally perform the work contractually undertaken, unless otherwise agreed by the parties. The corollary of this obligation is that, if prevented from working, the employee doesn’t have to find any replacement person to execute his/her work obligation.

The employee has the duty to carefully perform the work assigned by the employer (ie. duty of diligence). He/she has to safeguard the employer’s legitimate interests with loyalty. The duty of loyalty contains different obligations for the employee:

a secrecy obligation: an exception exists when it comes to whistleblowing. The employee has an obligation to inform his/her employer about problems and abuses occurring within the company. When it comes to external reporting, the Federal Court recognized that, in case of a predominant public interest, and if the employee previously and unsuccessfully tried to solve the problem at the internal level and in front of the supervisory authority, the employee can alert public opinion about practices taking place within the company (ATF 127 III 310, §5.a., March 30th 2001);
an accountability and restitution obligation;
an obligation to execute overtime.

In case of a breach of the previously listed duties, the employer can first and foremost take internal disciplinary measures (eg. warning). The following paths might also be followed:

the employer can refuse to pay the salary;
sue the employee for monetary damages if the employee is at fault;
terminate the employment contract without notice in cases where the breach was of sufficient importance or if the breach was reproduced several times by the employee despite a warning.

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