Overview of the public personnel law of the Confederation and of Canton Zurich
Employers
Public law employers are:
- Confederation
- Cantons
- Municipalities
- Independent and dependent institutions
- Special public limited companies (postal service etc.)
Applicable law
The applicable laws and ordinances depend on the employer. Overview of public personnel law of the Swiss federation and Canton Zurich If the employer is a canton, cantonal law is applicable. If communes have not enacted their own standards, cantonal public personnel law is applicable. Subsidiarily, the Code of Obligations may be applicable by analogy as public law.
The personnel laws may provide that the employment relationships for staff (as a whole or for certain categories) are subject to the Code of Obligations.
The staff of independent and dependent institutions under public law are generally assigned to the Confederation (e.g. ETH) or to a canton (e.g. hospitals). Accordingly, the federal personnel law or the cantonal personnel law is generally applicable. As a rule, they have their own personnel regulations.
The employment relationships of the staff of joint-stock companies governed by special legislation (Swiss Post, Swiss Federal Railways, etc.) may be subject to the Code of Obligations.
The applicability of the provisions of the Labour Code depends on whether there are exceptions to the operational and personal scope of application (cf. Art. 2 and 3 ArG). The provisions on health protection are applicable in any case (Art. 3a ArG). The Equality Act is also applicable (Art. 2 GlG).
Establishment
In principle, open positions must be advertised publicly.
The employment relationship is essentially established by a contract under public law or an employment order or election.
Employment by decree or contract is subject to participation, i.e. the employee must be granted the right to be heard.
As a rule, employment is for an indefinite period. Fixed-term appointments are possible; the applicable personnel law may contain special provisions on the admissibility of fixed-term appointments.
At the time of employment, the degree of employment and the salary shall be determined in accordance with the applicable provisions according to the function – and, if applicable, the education and experience (classification and grading).
The duration of the probationary period is often specified in the Personnel Act, although it may be deviated from in individual cases.
Rights and duties
Duty to work
Employees in the public service must first and foremost do the work and perform the duties for which they were hired. They must also comply with instructions from their superiors (unless these are manifestly unlawful).
Duty of loyalty
Employees owe the state loyalty and a positive attitude towards the state and its fundamental values (duty of loyalty). Employees must also conduct themselves correctly outside of work. More stringent requirements are imposed on the conduct and statements of employees outside work for executive employees and in particular those with representative duties.
The duty of loyalty towards the state requires that employees must not follow obviously unlawful instructions. Whether an instruction is manifestly unlawful is often not easy to judge.
Secondary employment and public office
Secondary employment and the exercise of public offices are subject to registration or – depending on the canton – require authorisation. Permission may be refused in particular if the secondary employment or office is incompatible with the employee’s job (conflict of interest) or if the work activity could suffer as a result (excessive demands).
Rights
Employees are entitled in particular to:
- Salary
- Salary continuation duing illness or accident
- Holidays and leave
- Reference letter
Reference letter
Employee appraisal
Employees are entitled to regular appraisals of their performance and conduct. As a rule, staff appraisals are carried out annually.
The staff appraisal is of particular importance for the classification and changes of classification in the salary model, the employer’s reference and the ordering of disciplinary measures.
Reference letter
Federal personnel law does not regulate employer’s references. Art. 330a CO is therefore applicable by analogy (Art. 6 para. 2 BPG). In the canton of Zurich, the employer’s reference is regulated in § 46 para. 2 PG.
The employer’s reference must comment on the nature and duration of the employment relationship as well as on performance and conduct. Alternatively, a confirmation of employment may be issued at the employee’s request (type and duration). Employees may request the issue of an interim reference at any time.
Holidays and leave
Holidays
Employees are entitled to holidays. The duration of the holiday depends on which personnel law is applicable. The following holiday regulations apply to the staff of the Confederation and the Canton of Zurich.
| Age group | Confederation | Canton ZH |
| Until the calendar year in which the 20th year of age is reached | 6 weeks | 27 days |
| From the calendar year in which the 21st year of age is reached | 5 weeks | 25 days |
| From the calendar year in which the 50th year of age is reached | 6 weeks | 27 days |
| From the calendar year in which the 60th year of age is reached | 7 weeks | 32 days |
Days off
Employees shall be granted the usual days and hours off or paid leave. The details and the respective duration are to be taken from the respective personnel law. Typical occasions for days and hours off are:
- Own wedding
- Wedding of a child
- Illness and accident in the family
- Death in the family
- Doctor and dentist consultation
- Change of residence
- Summons from authorities
- Job search after termination
Illness and accident
Salary continuation
Continued payment of salary in the event of illness or accident is governed by the applicable personnel law. This may provide for 100% salary continuation for a certain period and a reduction thereafter (Confederation and Canton of Zurich). The personnel law may provide for an insurance solution (daily sickness benefit insurance).
Holiday Reduction
Personnel law may provide for a reduction of holidays if an absence due to accident or illness has lasted longer than a certain number of working days (Art. 79a para. 2 VVO/ZH; Art. 67a BPV).
Changes
Changes to the employment relationship or the employment contract generally require consultation and, depending on the case, the consent of the person concerned as well as compliance with the notice period. They may include:
- extension of a fixed-term employment
- Change in the level of employment
- Individual salary increase
- Demotion
- Change of function
- Transfer
Termination
Ordinary termination
The employment relationship ends unproblematically on expiry of a fixed-term employment relationship, on reaching the age limit and on ordinary termination by the employer or the employee.
Termination by the employer requires that there is a factual reason and that the employee is given the right to be heard. The employee may request a statement of reasons for the dismissal (if the dismissal order is not already substantiated) and challenge the dismissal (e.g. on grounds of unfairness). Factual reasons are, for example, breach of important contractual or legal obligations, lack of suitability, fitness or willingness to perform the agreed work, etc.
Notice period
The notice period during the probationary period is generally seven days (§ 14 para. 2 PG/ZH; Art. 30a para. 1 BPV). After the probationary period, the length of the notice period depends on the duration of the employment relationship (§ 17 PG/ZH; Art. 30a para. 2 BPV). The Canton of Zurich provides for a notice period of six months for senior employees from the third year of service (§ 17 para. 3 PG/ZH).
Summary dismissal
Extraordinary termination or termination without notice requires the existence of good cause. Good cause is defined as circumstances which, in good faith, make it unreasonable to expect the employment relationship to continue.
Termination without notice is only justified in the case of particularly serious misconduct on the part of the employee. The misconduct must be objectively suitable to destroy the basis of trust essential for the employment relationship or to shake it so profoundly that the employer can no longer be expected to continue the employment relationship and the trust must actually be destroyed or shaken.
Termination Agreement
Employment relationships may be terminated by mutual agreement. A termination agreement must neither violate mandatory legal provisions nor lead to a clear circumvention of the protection against dismissal. If an objective, permissible reason for termination exists at the time the termination is initiated by the employer and the notice period is observed, there is nothing to be said against a termination agreement.
Protection against dismissal
Absence of conditions
In the absence of objective, factual reasons for ordinary termination or important reasons for termination without notice by the employer, the employee may claim compensation. Furthermore, in the case of unjustified termination without notice, the salary shall be paid until the expiry of the ordinary notice period.
Inopportune termination
In the case of untimely termination, the retention periods and consequences at the federal and cantonal levels are governed by the provisions of the Code of Obligations. After the end of the probationary period, the employer may not terminate the employment relationship inter alia:
- while the employee is performing military service, protective service or civilian service
- while the employee is prevented from performing work due to illness or accident through no fault of his own
- for 30 days during the first year of service
- from the second to the fifth year of service for 90 days
- for 180 days from the sixth year of service
- during pregnancy and 16 weeks after birth
- in the case of childcare leave
Termination during the vesting periods is null and void.
Continued employment
If a dismissal is overturned on appeal (e.g. on grounds of unfairness, untimeliness), there may be a right to continued employment, depending on the applicable personnel law. If there is no right to continued employment, only compensation is due.
Disciplinary measures
Measures
Disciplinary measures may only be imposed after an investigation (disciplinary enquiry) has been carried out and the employee has been given the right to be heard. The applicable personnel law determines which measures are permissible. Possible measures are
- warning (Art. 99 para. 2 BPV), reprimand (§ 30 PG/ZH)
- Change of scope of duties (Art. 99 para. 2 BPV)
- Reduction of salary, fine, change of working hours, change of place of work (Art. 99 para. 3 BPV)
Garden leave
Garden leave is ordered as a precautionary measure, e.g. if serious disciplinary incidents are established or suspected, if repeated irregularities are proven, or if further activity would impede ongoing proceedings.
Administrative inquiry
Administrative investigations are internal administrative, supervisory procedures. They may be ordered to clarify the suspicion of or the existence of maladministration, organisational deficiencies and breaches of duty. The employees involved in the investigation are obliged to cooperate in the clarification of the facts. Cooperation may be refused if those cooperating would incriminate themselves under criminal law.
Liability
The liability of employees of the state shall be governed by the applicable liability or responsibility act. In the case of the Confederation and the Canton of Zurich, the following applies: As a rule, the State is liable to third parties if an employee causes damage unlawfully in the course of his or her official duties (causal liability). The state may have recourse against the employee if the damage to the third party was caused intentionally or by gross negligence (liability for fault). Employees are also liable for damage caused directly by them to the state if they have breached their duties intentionally or through gross negligence (fault liability).
Procedure
Employees must be given the right to be heard before an order is made against them. The order must contain a statement of reasons and instructions on how to appeal.
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