The law forbids the employer to terminate the working relationship during the following periods of time:
• compulsory military or civil defense service (and during a period of four weeks before the beginning and after the end of the service);
• full-or-part-time inability to work due to non-faulty illness or accident (for 30 days during the 1st year of service, 90 days from the second to the 5th one, for 180 days from the 6th year of service);
• during pregnancy and during the 16 weeks following the childbirth;
• during the employee’s foreign-aid service ordered by the federal authority (with the consent of the employer).
If the employer sends a notice of termination during these periods, it will be considered as void. It should therefore be reiterated later.
The employer can’t give any and every reason when it comes to terminating a contract. If not “worthy of protection”, an invoked reason can constitute an abuse of rights.
In particular, the notice of termination of an employment relationship given by either the employer or the employee is considered abusive if based on:
• an inherent quality of the person such as an illness, a tattoo or even personality characteristics (TF 4A_92/2017, §2.2.1., June 26st 2017);
• because the other party exercises a constitutional right (ex. wearing a veil);
• to solely frustrate the formation of claims of the other party based on the employment relationship;
• because the other party asserts in good faith claims based on the employment relationship;
• because the other party accomplishes a mandatory military or civil defense service.
The notice of termination given by the employer is also deemed abusive:
• because the employee belongs to/doesn’t belong to an employee association, or because he/she exercises lawful union activities;
• during the period when the employee is a member of a company commission or of an institution linked to the said company, while being an elected employees representative and if the employer can’t prove any good cause;
• without respecting the consultation procedure, in connection with collective dismissal.
NB: the list isn’t exhaustive. Also, an abusive termination can derive either from insufficient justification or from the way the terminating party actually terminates the working relationship (TF 4A_92/2017, §2.2.1., June 26th 2017).
The party who abusively terminates the employment contract is bound to pay an indemnity to the other party. The amount may be up to the employee’s salary for six months.
The party who wants to ask for such an indemnity has to oppose the termination by writing to the other party. This shall be done before the end of the notice period.
If the opposition is valid and if parties can’t find any solution in order to keep the working relationship intact, the suffering party can ask for the said indemnity. Legal proceedings have to be brought to court within 180 days from the end of the working relationship.